Abstract: This paper presents a critique of contemporary democratic theory, using a line
of argument drawn from Locke’s Two Treatises. We argue that democracy cannot be the
ultimate ground of legitimacy; it must serve some larger norm. If political legitimacy
were ultimately grounded in democratic processes, no one could have authority over
democratic processes – and thus no one could legitimately institute them where they did
not already exist, or resolve disputes about them where they do. Democratic theory must
address this problem before it can be said to provide a complete theory of political
legitimacy.
In this paper we use a line of argument found in the democratic theory of John Locke
to offer a critique of contemporary democratic theory. We argue that there is an important
and unacknowledged deficiency in the current discussion over democratic theory. This
deficiency concerns the degree to which the mechanisms of democratic government – the
procedures by which democratic decision-making occurs, such as election procedures –
can themselves be said to possess democratic legitimacy. Though for most of this paper
we focus on elections, the traditional mechanism of democratic government, the problem
we raise is relevant to any theory that makes political legitimacy contingent on any kind
of democratic process.
The problem is this: in practice, where democratic processes do not exist they can
only be brought into existence by prior processes that are not themselves democratic.
Similarly, where democratic processes exist but malfunction or experience a crisis, some
process is needed for resolving that malfunction or crisis that will not itself be
democratic. In other words, the process of creating and maintaining the democratic
process is itself outside the democratic process. For this reason, democratic processes
must ultimately acquire legitimacy from some normative value other than democracy.
Failure to explicitly examine and evaluate these pre-democratic norms creates a gap in
democratic theory and encourages false expectations for democracy in practice.
Democratic theory dissipates its energies chasing the false hope of designing democratic
2
Convention