Political Representation as Interpretation: A Contribution to Deliberative Constitutionalism

Date01 December 2020
DOIhttp://doi.org/10.1111/raju.12300
Published date01 December 2020
AuthorDonald Bello Hutt
© (2020) John Wiley & Sons Ltd.
Ratio Juris, Vol. 33 No. 4 December 2020 (351–367)
Political Representation
as Interpretation: A Contribution
to Deliberative Constitutionalism
DONALD BELLO HUTT*
Abstract. This article analogises political representation to legal interpretation. It then applies
the analogy to the hitherto neglected question of what political representation means for de-
liberative constitutionalism. The upshot is a conception of deliberative constitutionalism that,
while uncompromisingly grounded in the reasoned expression of the preferences of a polity’s
constituents through deliberative democratic institutional innovations, mandates representa-
tives to translate those preferences into general and abstract constitutional law. It thus enhances
the deliberative contribution of citizens in the determination of constitutional meaning, while
preserving the value of representative institutions.
1. Introduction
Deliberative constitutionalism (DC) is a recent response to the scholarly trend con-
cerned with overcoming the constitutionalists’ general neglect of the deliberative
turn in political theory; it seeks to improve the rather unsystematic ways in which
deliberative democrats have theorised constitutional matters (Kong and Levy 2018;
Levy et al. 2018; Worley 2009). Deliberative constitutionalists stress that deliberation
should influence processes of constitution-making, and that constitutions should
structure deliberative procedures of ordinary lawmaking and constitutional change.
Finally, the literature is divided with regard to the institutional perspective from
which DC is theorised: Some take the judiciary and judicial adjudication as incarnat-
ing the idea, while others adopt the perspective of what we traditionally refer to as
representative institutions. I position myself in the latter group.1
The existing literature is silent as to what political representation is or entails for
DC. To fill this hiatus, this article proffers a two-pronged argument. It first develops
an account of political representation understood as or analogised to legal interpre-
tation. I call the analogy Political Representation as Interpretation (PRAI). I present
PRAI as an instrumental metaphor that accounts for representative practices in dem-
ocratic law- and constitution-making contexts. It also has normative value in setting
limits to those practices. In a second step, I apply the analogy to DC.
1 I argued for this institutional perspective in Bello Hutt 2018a.
* This work was supported by the Fonds Wetenschappelijk Onderzoek.
Donald Bello Hutt352
Ratio Juris, Vol. 33, No. 4© (2020) John Wiley & Sons Ltd.
Here is a succinct explanation of the first step. PRAI means that, placed in the ex-
tremes of the range covered by both categories, descriptive models of representation
(e.g., Pitkin 1967, 60) function and limit representative practices in a way analogous
to how accounts of interpretation putting emphasis on semantics limit interpreta-
tion to the description, discovery, or uncovering of the linguistic meaning of a legal
text (e.g., Solum 2010, 568). In turn, models of representation emphasising the inde-
pendent judgement of representatives—particularly some versions of constructivist
theories—function and limit representative practices analogously to how notions of
legal interpretation emphasising pragmatics and creation consider that there is no in-
trinsic semantic fact to the matter concerning what legal texts mean and that meaning
is thus heavily dependent on usage. The term emphasising is used in both cases since
interpretations are never purely driven by semantics or pragmatics.
In the second step, I apply PRAI to DC. This yields a conception of DC whereby
representatives should neither solely describe their constituency, nor purely con-
struct/create its preferences, on pain of doing something other than representing.2
In each case, representatives would either fall short of fulfilling their duties of ex-
ercising their independent judgement as constitutional lawmakers, or would be
illegitimately replacing, as it were, their constituents’ preferences with their own.
Put differently, just as agents either purely explaining or purely creating are no
longer interpreting but, in fact, describing or creating, legislators who either disre-
gard the preferences of their constituents or assume that those preferences are only
those they themselves create, are not representing either. PRAI constrains deliber-
ative processes of constitution-making so as to avoid those extremes. Deliberation,
in turn, makes it possible to publicly check that the constituents’ preferences in-
form the process.
The upshot of this article is a DC that, while uncompromisingly grounded on the
reasoned expression of the preferences of a polity’s constituents through deliberative
democratic mechanisms, preserves the value of the independent judgement of repre-
sentatives when translating those preferences into constitutional standards.
Two caveats apply before I proceed. First, I neither regard this as a new concept of
representation nor am I interested in proving that interpretation and representation
are conceptually linked. Given the lack of reflection on the matter by deliberative
constitutionalists, and given the high level of scholarly disagreement regarding the
concept of representation, I am more interested in what representation does for DC
than in its conceptual analysis (as is found, for example, in Saward 2010, 6). Second,
there is logical space for imagining a deliberative setting operated exclusively by
citizens without the mediation of representatives. Yet I here presuppose their exis-
tence. A different world without representative institutions may admittedly require
something different than PRAI.
The article is as follows. Section2 describes DC from the perspective of a dis-
cursive interaction between ordinary citizens and those we typically conceive of as
their representatives. The section shows that deliberative constitutionalists have not
considered political representation as part of their concerns.
2 Henceforth, preference(s) stands for fully formed preferences and beliefs, following Martí
2006, 44.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT