Democratic representation and non‐majoritarian actors in constitutional orders: a systemic analysis
| Published date | 01 September 2023 |
| Author | CHIARA VALENTINI |
| Date | 01 September 2023 |
| DOI | http://doi.org/10.1111/jols.12429 |
DOI: 10.1111/j ols.12429
ORIGINAL ARTICLE
Democratic representation and
non-majoritarian actors in constitutional
orders: a systemic analysis
CHIARA VALENTINI
Department of Legal Studies and
CIRSFID-ALMA AI, University of
Bologna, Italy
Correspondence
Chiara Valentini, Department of Legal
Studies and CIRSFID-ALMA AI,
University of Bologna, Via Galliera 3,
40121 Bologna, Italy
Email: c.valentini@unibo.it
[Correction added on 11 August 2023, after
first online publication: Footnote 77 has
been updated in this version.]
Abstract
A systemic analysis of constitutional democratic orders
can shed light on two important aspects of political rep-
resentation (PR): first, the complexity of PR as a plural
endeavour involving various actors that perform differ-
ent activities within a common framework; and second,
the diachronic dimension of such an endeavour, which
takes shape over time. The article elucidates both aspects
with a focus on adjudicative bodies, to point out their
representative status and potential as part of a systemic
continuum that unfolds over time.
1 INTRODUCTION
The democratic legitimacy of non-majoritarian institutions – such as regulatory agencies, central
banks, public service providers, bodies of oversight, and adjudicative bodies – is controversial.1
These entities can be defined as institutional bodies that ‘(a) possess and exercise some special-
ized public authority, separate from that of other institutions, but (b) are neither directly elected
nor directly managed by the people, nor directly managed by elected officials’.2They are non-
majoritarian in the sense that ‘the legitimacy of their power is not based on a majority of the
1Fora deep and comprehensive overview of the concerns raised by non-majoritarian entities with regard to political repre-
sentation, see M. Bovens and T.Schillemans, ‘Non-Majoritarian Institutions and Representation’ in The Oxford Handbook
of Political Representation in Liberal Democracies, eds R. Rohrschneider and J. Thomassen (2020) 510. On normative
concerns about political representation beyond the state, see R. Bellamy, ‘Globalization and RepresentativeDemocracy:
Normative Challenges’ in The Oxford Handbook of Political Representation in Liberal Democracies, id., 655.
2M. Thatcher and A. S. Sweet, ‘Theory and Practice of Delegation to Non-Majoritarian Institutions’ (2002) 25 West
European Politics 1, at 2.
© 2023 The Author.Journal of Law and Society © 2023 Cardiff University Law School.
J. Law Soc. 2023;50(Suppl. 1):S65–S80. wileyonlinelibrary.com/journal/jols S65
S66 JOURNAL OF LAWAND SOCIETY
votes of the electorate, either directly or via a representative body’.3Ultimately, they ‘derive their
legitimacy from expert decision-making at arm’s length of elected politicians’.4
These entities retain significant political power and play a crucial role at a transnational level.
Nonetheless, they are not subject to direct political authorization and/or control, which raisesfour
significant concerns about their democratic legitimacy in terms of political representativeness.
First, non-majoritarian entities do not have an electoral input legitimation, but rather rely on a
‘throughput legitimacy’ that they derive from the ‘impartiality, legality and technical soundness
of their operations’.5
Second, and relatedly,these entities are not responsive to majorities and yet can counteract their
political will, which raises a ‘counter-majoritarian’ difficulty.This is the widely debated difficulty
that arises when courts contradict and/or nullify the decisions of political majorities through the
judicial review of the laws.6
Third, non-majoritarian entities usually lack ‘descriptive’ representativeness. They are com-
posed of experts who do not share the same educational level and socio-cultural background as
the ‘general population’.
Fourth, these entities lack political accountability through mechanisms of re-election that cit-
izens could use to remove non-majoritarian officials who cannot adequately account for their
actions.
For all of these reasons, non-majoritarian entities do not comply with the traditional paradigm
of political representation (PR). In this paradigm, PR is based on a ‘responsive’ relation between
representatives and representees, in which the former ‘act for’ the latter. As delegates, repre-
sentatives are directed by representees. As trustees, they exercise their own judgment, being
accountable to representatives but not subject to their instructions.7The basis of the respon-
sive relation is electoral, since representatives are both electorally appointed and electorally
accountable. There are, however,other forms of PR, based on different types of relations between
representatives and representees and lacking an electoral basis. More precisely, PR is essentially
a relation between representatives and representees in which the former do not ‘actfor’ the latter,
but rather ‘stand for’ them.8This relation can be descriptive, when representatives‘resemble’ rep-
resentees, or indicative, when representatives serve as ‘indicators’, taking the actions or decisions
that representees would takeif they were in the position to do so.9In both cases, the representative
relation may lack an electoral basis; representatives can be selected on the basis of their charac-
teristics or merits and can be accountable in non-electoral terms, through mechanisms of reason
giving.10 Furthermore, PR can be based on plural relations,11 rather than dyadic relationsbetween
3Bovens and Schillemans, op. cit., n. 1, p. 513.
4Id., pp. 513–514, drawingon F. Vibert, The Rise of the Unelected: Democracy and the New Separation of Powers (2007).
5Bovens and Schillemans, id., p. 513. On majority and a comparative analysis of the different terms in which it serves as
a standard of legitimacy in constitutional settings, see C. Caruso, ‘Majority’ in Max Planck Encyclopedia of Comparative
Constitutional Law, eds R. Grote et al. (2022) 1.
6A. M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986).
7H. F. Pitkin, The Concept of Representation (1967); P. Pettit, ‘Varieties of Public Representation’ in Representation and
Popular R ule, eds I. Shapiro et al. (2008) 61.
8Pitkin, id.
9P.Pettit, ‘Representation, Responsive and Indicative’ (2010) 17 Constellations 426.
10 J. Mansbridge, ‘ASelection Model of Political Representation’ (2009) 17 J. of Political Philosophy 369.
11 F. Rey,‘The Representative System’ (2020) Critical Rev. of International Social and Political Philosophy 1.
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