The Community Values Approach

12.2.1 Examples from the United States and Canada

The community values approach is followed when judicial decisions on constitu­tional rights are at least partly justified on the ground that those decisions accord with a community consensus, or at least with a very substantial majority of the com­munity, when that consensus is nevertheless distinguished from public opinion.

Other countries also furnish examples. In the 1980s and 1990s, the Australian High Court employed the community values approach in some of its most important decisions and this approach was also understood as part of a movement from legal formalism. This prompted a provocative understanding and defence of the commu­nity values approach by criminologist John Braithwaite, drawing on republicanism and social psychology (Braithwaite 1995). I made the last of three critiques of Braithwaite’s approach, and will not reiterate points made there (Ghosh 1998).^[293] Instead, this chapter’s examples will be from the US and Canada.

Beginning with the US, in Democracy and distrust John Hart Ely referred to Supreme Court cases and academic writing that followed the community values approach (Ely 1980). One case is Furman v Georgia (1972). Ely mentioned that Justices Brennan and Marshall argued that the death penalty was unconstitutional partly because it was out of accord with contemporary community values (Ely 1980, 65). It is worth, however, elaborating more than Ely does on Justice Marshall’s judgment. Justice Marshall mentioned that the test in previous case law for whether a penalty constituted “cruel and unusual punishment” was whether it “it shocks the conscience and sense of justice of the people”.^[294] He said that an opinion poll would be of limited utility, for the question is “whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.”^[295] He claimed that available information against the death penalty was sufficiently strong to suggest that informed opinion would view the death penalty as morally reprehensible.^[296]

It is academic writing, though, that articulates more fully the community values approach.

Turning to Canada, one relevant Supreme Court case is Rodriguez v British Columbia (1993). Rodriguez was terminally ill, with amyotrophic lateral sclerosis, and argued that the offence of assisting suicide found in the Criminal Code violated section 7 of the Charter. Section 7 states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The majority held that the principles of justice must be “fundamental” in the sense that they would achieve general accep­tance among reasonable people.^{[299] [300] This appears to be the community values approach: there is reference to consensus values of reasonable community mem­bers. In this case, though, the majority held that there was an absence of a commu­nity consensus in favour of decriminalizing assisted suicide. This suggested that section 7 of the Charter was not violated by the Criminal Code.}

Of greater interest here, though, is Waluchow’ s defence of the community val­ues approach. Waluchow mentioned that a popular complaint against judicial review is that it renders the law too dependent on the subjective moral opinions of judges, and this cannot be justified in any society that purports to respect democracy and the rule of law (Waluchow 2008, 65-66).¹¹ One response to this complaint, Waluchow continued, is that a bill of rights refers to matters of moral truth. However, this is unsatisfactory, for there is so little agreement on moral truth that judges will have a wide discretion. Another response is that a bill of rights refers to norms of positive morality. One difficulty with this response, however, is lack of consensus. A second difficulty is that positive morality may perform poorly in protecting vul­nerable minorities against majority prejudices.

Waluchow claimed that judges should instead refer to the community’s “true moral commitments”.

These observations about an individual’s morality, Waluchow suggested, are generally overlooked when considering judicial review and the political morality which bills of rights refer to. For example, he said that those who criticise same-sex marriage as being at odds with the received moral views of Canadians are likely to have in mind mere moral opinions. These opinions, he argued, contradict funda­mental principles that enjoy widespread currency within the community. Thus, the principles upon which reasonable Canadians are keen to condemn racial bigotry and sexism equally condemn prejudice against same-sex marriage (Waluchow 2008, 74). He admitted that for many people, recognising that their true commitment to equality requires the recognition of same-sex marriage may be a “long and difficult process” (Waluchow 2008, 74). He suggested, though, that there is no good demo­cratic reason why judges should respect the community’s moral opinions rather than the community’s true moral commitments or, to put it differently, the commu­nity’s inauthentic rather than its authentic wishes.^[302]

He then distinguished the community’s true moral commitments from the com­munity’s constitutional morality. The community’s constitutional morality consists of those true moral commitments that are tied to its constitutional law and practices (Waluchow 2008, 77). He believes that the Canadian Charter of Rights and Freedoms reflects some of the community’s true commitments (Waluchow 2007, 219). Furthermore, judges engaged in judicial review may be in a better position to determine the requirements of a community’s true moral commitments than politi­cians.

These examples provide a sufficient sense of the community values approach. The existence of community consensus can be employed in justifying a right, as in Furman. The absence of consensus can be used to deny a right, as in Rodriguez. There are also strong commonalities between Wellington and Waluchow. Indeed, Waluchow referred to Wellington as an example of the approach he favours (Waluchow 2008, 76 fn 16). One common assumption is that progressive decisions by courts at odds with public opinion could gain democratic legitimacy if judges refer to community values. However, there are also some differences. While this is not perhaps evident from the discussion so far, Waluchow relies more clearly than Wellington on general principles rather than attitudes found in the community’s morality. There are variants within the community values approach.

12.2.2 Criticisms

This sub-section will mention criticisms of the community values approach, focus­ing on some of the examples mentioned. It begins, again, with the US and Ely’s critique of the community values approach. Ely said that the view that judges, in enforcing the Constitution, should use their own values to measure the judgment of the political branches is seldom endorsed, for it would be difficult to reconcile with democracy (Ely 1980, 44-45). This leads to the search for something “out there”

waiting to be discovered, whether it be natural law or some supposed value consen­sus (Ely 1980, 48). After critiquing reference to natural law, he turned to value consensus. He said that while consensus may exist in favour of some abstract ideals, that is only because the vagueness of those abstract ideals allows for almost any interpretation (Ely 1980, 64-65).

Ely sought to discredit the claim in Furman that contemporary values were against the death penalty by noting that the decision was followed by “a virtual stampede of state re-enactments of the death penalty” (Ely 1980, 65).

Ely was, in any case, scathing about laundering devices. He compared the idea that the genuine values of the people can most reliably be discerned by a nondemo- cratic elite with the Soviet definition of democracy. This, HB Mayo had written, involves the ancient error of assuming that the “the wishes of the people can be ascertained more accurately by some mysterious methods of intuition open to an elite rather than by allowing people to discuss and vote and decide freely.”^[305] Finally, Ely said that it made “no sense to employ the value judgments of the majority as the vehicle for protecting minorities from the value judgments of the majority” (Ely 1980, 69).

Ely’s critique was extended, and also qualified, some years later by the Polish- Australian philosopher Wojciech Sadurski. The qualification lay in recognising that there are circumstances where it can make sense to invoke the majority’s judgments to invalidate legislation that discriminates against a minority (Sadurski 1987, 344­351). For example, the legislation in place may reflect a past majority opinion while judges, in protecting a minority, may be deciding in accordance with contemporary majority opinion.

One extension to Ely’s critique lay in Sadurski’s discussion of laundering devices that may be more sophisticated than those mentioned by Ely. One is provided by Rawls. Given Waluchow’s use of Rawls, it is worth referring to Sadurski’s discus­sion (Sadurski 1987, 381). Sadurski mentioned that in post-A Theory of Justice articles, Rawls used language similar to the original reflective equilibrium, in that he referred to people’s considered convictions and working out a state of harmony between their convictions and principles. Rawls suggested that the political philoso­pher should seek to bring together the considered convictions of many people with the aim of forming a coherent body of shared notions and principles. While Sadurski found Rawls’s original reflective equilibrium helpful in understanding how an indi­vidual might engage in critical reflection, he expressed doubts about Rawls’s adap­tation of this to the community level. While an individual can modify his or her own general principles and judgments on particular matters, how to deal with inconsis­tencies in general principles and particular judgments when engaging in reflective equilibrium for the community? Sadurski mentioned the risk that the philosopher may eliminate some opinions as unconsidered simply because he or she morally disapproves of them (Sadurski 1987, 383). The appeal to Rawls for shared princi­ples based on the considered judgments of the community does not avoid concern about judges employing their own value judgments in invalidating acts by the popu­lar branches of government.

Turning to Canada, Waluchow did not refer to the critiques discussed here but, instead, to the main concern with the community values approach mentioned in 2005 by the philosopher Andrei Marmor. Marmor, in fact, echoed two of Ely’s concerns.^[306] One is dissensus, but Marmor’s primary concern is how effective major­ity values can be in securing against majoritarian tyranny. Waluchow’s response is that Canadians’ true commitments are consistent with minority protection and that reflection on moral questions can engender greater consensus than appears in ordi­nary public opinion. The next section considers empirical material that throws light on Waluchow’s response to Marmor. I will discuss here Waluchow’s views about the discretionary character of judgments about the true commitments of the community.

Waluchow admitted that his approach relies on judges’ personal views about the community’s constitutional morality. The community’s constitutional morality, it will be recalled, consists of those true commitments of the community that are rec­ognised in constitutional law. He said that judges’ views on constitutional morality may be highly controversial and not amenable to conclusive demonstration (Waluchow 2008, 81). Nevertheless, he continued, the exercise of good-faith judg­ment in determining the community’s constitutional morality is no more disturbing than use of such judgment by, say, judges in ordinary appeal cases.

Waluchow did not, however, address Ely’s concern that the exercise of judgment in constitutional cases is more problematic, given their greater finality (Ely 1980, 68). While Waluchow could abandon his claim that there is nothing more problem­atic about judgment being exercised in constitutional cases, his more fundamental claim is the following: “It is one thing to say that a bill of rights case hinges on the judge’s own personal morality, and quite another to say that it hinges on her personal views about what the community's constitutional morality requires” (Waluchow 2008, 81). By the judge’s own personality morality, Waluchow meant their values as a private citizen. He mentioned that a judge, for instance, might be a closet racist, but racism may be inconsistent with principles contained in legislation (Waluchow

2007, 220). Waluchow is suggesting here that the judge faces a choice between applying his or her private prejudices or seeking to discover the community’s true moral commitments that are consistent with the constitutional material. The assump­tion is that at least in Canada, those commitments condemn racial discrimination.

Waluchow, however, overlooked alternatives. A positivist might conceptualise decision-making in hard cases as interstitial legislation while an anti-positivist might conceptualise decision-making as an attempt to interpret the legal material in its best light. That last possibility is associated with Dworkin. Dworkin’s approach can be confused with the community values approach.^[307] Dworkin argued that judges should interpret the legal material so that it expresses a coherent set of principles. In doing so, Dworkin said, judges confirm the principled character of the community (Dworkin 1986, 264). This might suggest that judges aim to express the values that community members are committed to. However, Dworkin said: “...when I speak of the community being faithful to its own principles, I do not mean its conventional or popular morality, the beliefs and convictions of most citizens” (Dworkin 1986, 168). Instead, he meant the commitments of the “community personified”, ie, the community imagined as a moral person. The commitments of the community per­sonified are constructed from the legal material; they are not the commitments that most community members necessarily accept. By contrast, Waluchow commenced his discussion of true commitments versus public opinion at the level of the indi­vidual community member. His assertion that recognising same-sex marriage is consistent with the “fundamental beliefs, principles, values, and considered judg­ments that enjoy widespread, if not universal, currency within the community” is a reference to the true commitments of the great majority of Canadians (Waluchow

2008, 73-74).

The positivist, the Dworkinian and the Waluchovian judge will be required to distinguish between values they might hold as a private citizen and those values that appropriately guide public decision-making. It is only Waluchow’s approach, though, that is paternalistic, with an elite claiming its decisions are based on what community members truly believe or authentically wish for.^[308] This paternalism aggravates rather than diminishes concern about the democratic legitimacy of judi­cial decision-making, a concern especially acute with constitutional cases. It reso­nates with a justification for anti-democratic thought that suggests that the state enlarges citizens’ liberty when decisions promote citizens’ real or authentic wishes, even if those decisions are against the actual wishes of those citizens.^[309]

12.2.3 Democratic Theory

While the critiques of the community values approach suggest that it aggravates concern with democratic legitimacy, it is helpful to connect that conclusion more closely with democratic theory. The democratic theories referred to or endorsed by Wellington and Waluchow can themselves be employed to shed critical light on the community values approach.

Starting with Wellington, in understanding US democracy, he drew mostly on literature from the late 1950s to the early 1970s. During most of that period, plural­ist democratic theory dominated. He referred, for instance, to Robert Dahl’s Democracy in the United States, where Dahl noted that the legislative and executive branches of government depart from political equality partly by enabling organised minorities to exercise significant power.^[310] Wellington referred to this in order to lessen the contrast in democratic credentials between the popular and judicial branches of government. While Wellington’s reference to Dahl does not imply endorsement of Dahl’s normative democratic theory, Wellington’s discussion of US democracy seems broadly consistent with it.

Dahl mentioned that behind the commitment in the US to government by the people lies a belief in political equality and consent (Dahl 1972, 7). One value that justifies this belief is individual freedom. Individual freedom suggests that “...so far as possible no adult human being should ever be governed without his consent” (Dahl 1972, 9).^[311] He was not proposing that individuals have a veto over the politi­cal system. Instead, the political system must enjoy the “consent of the governed, considered as political equals” (Dahl 1972, 8-9). For Dahl, individual freedom sug­gested that each citizen should have political power consistent with others enjoying the same power. It is a notion of freedom as individual self-government qualified to make it applicable to collective decision-making. Political equality, he argued, is achieved through majority rule, but the scope for majority decision-making may need to be limited to achieve the protection of minorities (Dahl 1972, 28). Such protection may be necessary in order to achieve their consent. Individual freedom, then, requires political equality and policies that are viewed as sufficiently fair to attract the consent of not just the majority but also minorities.

Dahl associated democracy, though, especially with political equality and major­ity rule.^[312] He also recognised other criteria for authority, such as justice and econ­omy. Economy draws attention, for instance, to the fact that participatory decision-making processes take the time and effort of those participating (Dahl 1970, 40-56). One could say that for Dahl, political equality is the primary criterion of democratic legitimacy. By contrast, general legitimacy takes into account all cri­teria relevant to legitimate authority.

While that provides some understanding of Dahl’s general approach, it is worth noting a few points he made about the authority of the president and courts in the US. In discussing the delegated authority a president enjoys, Dahl said that: “For his authority to be acceptable from a democratic perspective.he would have to exer­cise it by attempting to satisfy the dominant goals, values, or wills of the citizens, weighting each citizen as the equal of every other” (Dahl 1972, 438). However: “What citizens want, and what they would be likely to want if adequately equipped with technical advice, are. frequently unknown.” (Dahl 1972, 438). Dahl noted, though, that many public officials, elected and non-elected, are in fact able to make decisions in which their own preferences, including their own conception of the public good, carry far more weight than those of ordinary citizens (Dahl 1972,439).

Turning to judicial review, Dahl claimed that this would lack legitimacy if it permitted judges to impose their own preferences and biases rather than acting to promote through their decisions political equality and fairness for minorities (Dahl 1972, 198). He linked that fairness to the question of minorities being able to freely consent to the political system. He did not, then, suggest that judges should satisfy the dominant values of citizens. Nevertheless, his comments about presidential authority are suggestive when thinking about the community values approach. While he distinguished in his example between what citizens want and what they would want if equipped with technical advice, the more general distinction is between actual and informed preferences, where the latter are achieved through consideration of technical and non-technical information. Dahl’s reference to informed preferences can be supported by his conception of individual freedom. It is difficult to see how individuals can freely consent to the exercise of authority unless they possess relevant information on how that authority is and should be exercised.

The distinction between ordinary and informed preferences is also crucial to the community values approach. Wellington distinguished reasonable views from views that are prejudiced or arise from the passion of the moment. Wellington did not elaborate on how to distinguish prejudices and passions, on the one hand, from reasonable community views, on the other hand. In relation to racial discrimination, however, Wellington said that it may take decades before prejudices have weak­ened. Thus, the correctness of Brown v Board of Education (1954) was revealed when, decades later, few could be heard to endorse racial segregation (Wellington 1982, 516). Wellington seemed to assume moral progress over time. Furthermore, Wellington’s recommendation that judges decide on the basis of conventional morality is justified on democratic grounds, and it is unclear how decisions based on people’s preferences several decades hence, even assuming they can be reliably detected with a crystal ball, can legitimately bind a people today.^[313]

Dahl’s reference to preferences achieved after the provision of relevant informa­tion is less stringent than envisaging preferences that emerge potentially after several decades. It may indeed be that the racial prejudices that Wellington had in mind are not easily dislodged by the provision of relevant information. Nevertheless, the greater the stringency of the requirement for the expression of informed prefer­ences, the greater the difficulty in imagining any process that could rely on people’s expression of their own preferences as a way of validating claims about community values.

Another point of difference is that Dahl’s reference to informed preferences involved the application of majority rule, while Wellington said that determining conventional morality requires reasoning from commonly held attitudes (Wellington 1973, 310). Such attitudes, Wellington mentioned in his 1973 article, did not sup­port abortion where the continuance of the pregnancy would gravely impair the physical or mental health of the mother (Wellington 1973, 311). Thus, Roe v Wade (1973) went too far (Wellington 1973, 299). Instead, those attitudes would permit abortion to save the life of the mother. Wellington is perhaps partly motivated by concern that the court’s legitimacy would be undermined if it made decisions that fell outside what a very substantial majority of people would support if properly informed.^[314] The puzzle, though, is that popular responses to court decisions might be better explained by reference to uninformed rather than informed opinion. It is unclear what impact on popular legitimacy there would be if one compares two decisions each of which faces the same degree of opposition from ordinary public opinion, but one of which would enjoy greater support from reflective public opin­ion. Furthermore, requiring consensus or close-to-consensus would prevent deci­sions that Wellington favoured, such as Brown. It would strongly privilege the status quo.

Apart from providing an alternative understanding of community values, Dahl’s discussion is helpful in considering how judicial reference to community values, understood as majority informed opinion, could relate to democratic legitimacy. Dahl’s value of individual freedom will be applied to three possibilities: where judges are bound to decide in accordance with majority informed preferences, where judges never bind themselves to decide in accordance with these preferences, and where judges choose on a case-by-case basis whether they will defer to such preferences. Turning to the first possibility, Dahl’s value of individual freedom sug­gests that collective decision-making must accord each citizen political equality, ie, an equal opportunity to exercise decision-making power. With judges being bound to decide in accordance with majority informed preferences, individual freedom would increase, since citizens would actually enjoy some decision-making power on constitutional rights, even if decisions are ultimately made in the name of a judge. Judges would only be able to decide in accordance with majority informed preferences if there were some process that gave citizens an equal opportunity to express such preferences.

Turning to the second possibility, where judges are not at all constrained by informed majority preferences, individual freedom, with its implication of political equality, would not be promoted. Invoking the language of “community values” in this context would not promote democratic legitimacy. It might instead provide empty symbolism.

The third possibility mentioned is where judges can choose on a case-by-case basis whether to defer to such preferences and they sometimes chose to do so. The extent to which individual freedom is promoted in this circumstance would depend partly on whether a probabilistic or a power-centred approach to individual freedom is applied. I have previously used these terms to describe how the philosopher Philip Pettit understands a liberal versus a republican approach to freedom, where those conceptions of freedom are negative, or have affinities with negative liberty.^[315] These terms can be applied here, however, to freedom as self-government.

With a probabilistic approach, individual freedom depends on the probability that the power of self-government is available. Thus, if there is a 50 % chance that judges will defer to majority informed opinion, there is half the degree of self­government as when judges always defer to such opinion. Of course, qualitative criteria are also relevant. Thus, if deference only occurs in less significant cases or cases about which judges are indifferent, that would diminish self-government. Also, if judges only defer when they expect or see that informed opinion accords with their personal views, there is only slight or sham deference.

With a power-centred approach, individual freedom is absent when the opportu­nity to exercise it depends upon the discretion of another. Pettit suggests that a slave lacks republican freedom even if the slave has a master who is extremely unlikely to interfere; the slave remains a slave, for the slave is vulnerable to the arbitrary power of a master (Pettit 1999, 31). This idea can be applied to individual freedom as self-government that in the collective context requires political equality. One could say that where the possibility of majority informed opinion being reflected in constitutional decisions is dependent upon the discretion of judges, the people suf­fer an absence of freedom on those constitutional issues.

Nevertheless, if judges defer on occasions to majority informed preferences, that would support considerations that are relevant to individual freedom even under this power-centred approach. One can distinguish outcome- from process-related considerations. The outcome consideration focuses on the quality of decisions pro­duced by a process, while process-related considerations focus upon values pro­moted by the process itself, not taking into account the quality of the decisions it produces. A commitment to political equality may be supported by the claim that it achieves more attractive outcomes and promotes process considerations such as demonstrating appropriate respect for the autonomy of citizens. From the perspec­tive of a commitment to political equality, an official who sometimes defers to the citizens’ informed preferences is preferable to an official who never does. The for­mer is likely to reach more attractive outcomes and also demonstrates greater respect for citizens’ autonomy.

It is not necessary to decide here, however, between probabilistic and power- centred approaches. Under either approach, there are significant differences in the extent to which self-government or its supporting considerations are promoted depending on whether judges are bound to defer to majority informed opinion or where such deference is discretionary or such deference never occurs.

In summary, this sub-section started with Wellington and his reference to Dahl. Dahl was then used to critique Wellington. First, Dahl provides an understanding of community values as informed majority opinion and this is more democracy­friendly than reliance on a consensus of future preferences. Secondly, where judges retain a discretion on when to constrain themselves to informed majority prefer­ences, individual freedom (and consequently democratic legitimacy) may be pro­moted minimally or not at all.

Turning now to Waluchow, criticisms just made of Wellington are also applica­ble here. Like Wellington, Waluchow suggested that for some individuals, reflec­tive opinions on certain issues may take a long time to achieve. Waluchow used the example of favouring same-sex marriage. To adapt my earlier response to Wellington, one might wonder how enforcing the values that would perhaps be endorsed by the community decades later is consistent with democratic values. Again, envisaging short-term reflection is necessary to render reference to commu­nity values democracy-friendly. Only in this way is it imaginable that there could be a process which relies on citizens’ expression of their own preferences. Also like Wellington, Waluchow is committed to consensus (Waluchow 2008, 77-78). However, decisions such as favouring same-sex marriage as a constitutional right may be justifiable on the basis of current community values when majority rule is applied instead of consensus.

It is worthwhile, though, considering the democratic theory that Waluchow endorses, for that articulates what objections need to be overcome if decisions on rights conforming to informed majority opinion are to be legitimate. In A Common law theory of judicial review Waluchow rejected a procedural conception of democ­racy. This conception equates democracy with majority rule (Waluchow 2007, 106-107). He instead endorsed Dworkin’s constitutional conception of democracy. Quoting Freedom’s Law, Waluchow said:

[This constitutional conception]...denies that it is a defining goal of democracy that collec­tive decisions always or normally be those that a majority or plurality of citizens would favour [even] if fully informed and rational. It takes the defining aim of democracy to be a different one: that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect.” (Waluchow 2007, 108, quoting Dworkin 1996, 17).^[316]

Dworkin believed that in the US, judicial review is justified where judges employ arguments of principle rather than policy, for judges have an advantage here over parliamentarians. Dworkin’s understanding of principle and policy is similar to Wellington’s (Wellington 1973, 222-225). Dworkin also argued that judges should justify their decisions as an interpretation of the legal material. As mentioned in Sect. 12.2.2, for Dworkin, the morality of the community personified would be determined by reference to, for instance, judicial and legislative decisions. A Dworkinian judge considering constitutional recognition of a right to same-sex marriage would interpret the legal material in its best light.

Let us suppose that a Dworkinian judge was dealing with same-sex marriage quite some decades ago, and assume further that reflective public opinion would not have yielded a clear majority in favour of same-sex marriage being a constitutional right. If the judge were able, through the interpretive approach, to reach an under­standing of what constitutional rights require in this case that is superior to what reflective public opinion would endorse, the judge should decide in accordance with his or her own understanding. Dworkin would have justified this as the approach most likely to promote his ultimate democratic values of equal concern and respect. Exploring how this approach would achieve this requires addressing again out­come- and process-related considerations. The focus on the outcomes of judicial decisions in constitutional cases that is found in Dworkin (and also Wellington, Dahl, and Waluchow) might suggest that process-related considerations are over­looked. However, the focus on outcomes should instead be understood as reflecting the view that any compromising of process values resulting from the more elitist form of decision-making constituted by judicial decision-making is unlikely to be substantial, given the divergence from political equality that occurs with electoral democracy (Waluchow 2007, 17; Dworkin 2000, ch 4). Thus, significant gains in outcomes produced by judicial decisions are likely to outweigh any loss captured by process considerations.

However, even in this case, the judge might have reason to defer to majority informed opinion if general deference to such opinion would, overall, lead to better outcomes. The best process for obtaining sound decisions on moral questions may be one which relies on what a majority of diverse individuals in the community would decide after reflection rather than what a judge, or a small group of judges, would decide. With the individual not being able to reliably determine when their individual judgment is superior to informed majority opinion, general deference may be the best strategy. On process considerations, one mentioned by Dworkin in Sovereign Virtue is symbolic: it is concerned with what message the process con­veys relating to citizens’ status as free and equal (Dworkin 2000, 187). Deference to majority informed opinion could convey the message that citizens have the autonomy to reach sound decisions on questions of justice. This is an attractive message to convey, at least if citizens do in fact enjoy this autonomy.

With certain assumptions, Dworkin’s constitutional conception of democracy might be promoted by deference to informed majority opinion. It is also important to note, though, that Dworkin’s constitutional conception of democracy is helpful in indicating that judicial deference to informed public opinion may not necessarily promote democracy legitimacy. Of course, Dworkin had a broad conception of democracy. Dahl, on the other hand, identified democracy with popular control or, more specifically a substantial degree of political equality. This narrower, proce­dural conception of democracy involves a conception of democratic legitimacy that is distinct from general legitimacy. As mentioned earlier, general legitimacy would take into account justice. Thus, if judges are bound to defer to community values, democratic legitimacy may be enhanced even if this deference leads to more unjust outcomes assuming, at least, that the unjust outcomes do not impact on political equality within the popular branches of government. General legitimacy, though, may not be promoted. It would be to general legitimacy that Dahl would have referred in explaining why he did not suggest that judges should follow the major­ity’s informed preferences.

12.3