Representative Legislatures, Grammars of Political Representation, and the Generality of Statutes

• Author: Dimitris Tsarapatsanis
• Date: 01 December 2018
• DOI: http://doi.org/10.1111/raju.12226
• Published date: 01 December 2018

© 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

Ratio Juris. Vol. 31 No. 4 December 2018 (444–459)

Representative Legislatures, Grammars

of Political Representation,

and the Generality of Statutes

DIMITRIS TSARAPATSANIS*

Abstract. This ar ticle explores the claim that repr esentative legislatures should create ge n-

eral legal norms. Af ter distingui shing the requi rement that statutes be general f rom the

broader rule-of-law idea that law be genera l, I concentrate on the French constitut ional tra-

dition to argue that t he plausibility of the claim turn s on the elucidation of a set of social

norms and understa ndings about the proper role of representative legisl atures mediating

between abstract idea ls of the common good and local practices. I cal l these norms gram-

mars. The article t hen briefly compares the French “Sieyèsian” with th e US “Madisonian”

grammar of polit ical representation rega rding the issue of the gene rality of statutes and

concludes with a plea for an in- depth comparative investigation into di fferent such

grammar s.

Let us begin with t he idea that the separation of powers involves “articulated gover-

nance,” i.e., multistage governmental action in which differe nt kinds of in stitutions

make distinct ive kinds of contributions to the overall project of governing (Waldron

2016, 62–5). How should we understand the contribution made by representative leg-

islatures? A prevalent response, echoed by Waldron (ibid., 65–6), suggests that leg-

islatures’ direct ives should not address particular situations or persons; rather, they

should formulate publicly ascertainable norm s at an appropriate level of generality.

My main aim in th is article is to build on Waldron’s claim by elucidating some of the

normative and historical condition s of plausibility of such a response. My argument

comprises four steps. First, I disti nguish the specif ic institutional issue of the gen-

erality of laws or statutes qua products of represe ntative legislatures f rom the wider

and well-documented theme of the generality of the law, introducing a roughly

Rousseauian ideal that laws should be general bec ause they are aimed at a common

good that transcend s particularistic interests. I contend t hat Rousseau’s own formu-

lation of the ideal is of limited help for at least two reason s. First, Rousseau famously

repudiated representation. More importantly, the Rousseauian ideal is underdeter-

mined in the sense that it does not imply either conceptually or normatively that

* I wish to than k Graham Gee, Atina Krajewsk a, Ioanna Tourkochoriti, Eoin Daly, John

Danaher, and especi ally an anonymous reviewer for th eir comments on previous draf ts of this

article. The usua l disclaimer applies.

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Ratio Juris, Vol. 31, No. 4 © 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

Representative Legislatures

legislatures should always create general norm s. This indicates that the link, if any,

between the generalit y of laws and representative legislatures under a Rousseauian

construal of the com mon good is contingent. Accordingly, in order to further probe

the nature of that link, it might be useful to look at how it was tackled by histor-

ically specific const itutional traditions. In the second section of the article I t hus

suggest that the modern French const itutional tradition is significa nt in this respect,

because since 1789 it has insisted on a robust requ irement that norms formulated by

representatives be general. Representatives are suppose d to abstract from particular

considerations and “will for the nation,” as Antoine Bar nave famously put it (Brunet,

2004, 113). In the third s ection, I reconstruct thi s tradition to suggest that detachment

from particula rity on the part of representatives is not a judicially enforceable norm

but an open-ended and flexible presu mption resulting from the interplay of the ab-

stract Rousseauian ideal with a set of historically specific u nderstandings, expec-

tations, and argumentative constraints about the role of representatives. Following

Boltanski and Thévenot (2006) and Lemieux (2009), I use the concept of gramm ar

to designate the product of this inter play. Grammars can be understood as the h is-

torically concrete and evolving intermediate normative requirements that connect,

in more or less flexible ways, relatively underdetermined abst ract ideals with local

institutional pract ices. There can thus be many such grammar s as I show in the last

section of the art icle, where I briefly compare the Sieyèsian with t he quite different

Madisonian grammar of political representation akin to the US constitutional t ra-

dition. Importantly, the Madisonian g rammar downplays, albeit without totally ne-

gating, the importa nce of the generality of statutes. I conclude by pleading in favour

of a deeper empirical and normative exploration of different grammars of political

representation. Such an endeavour may provide useful i nsights into the elucidation

of the distinct ive contribution of representative legislatu res to the overall project of

governing and, thus, supplement more abstract versions of the theory of t he separa-

tion of powers along lines like t hose suggested by Waldron.

1. The Generality of Statutes a s a Distinctive Concern

To fix ideas further, we might once again take as our sta rting point Waldron’s (2016,

136–41) observation to the effect that representative law-making is a normatively

distinctive activit y involving the publicly debated creation of legal norms charac-

terized by a double kind of abstraction. Waldron makes two separate points about

representative law-making. First, with regard to content, the dire ctives created have

to be general in the rule- of-law sense of not targeting particu lar persons (as, for

example, do bills of attainder). Waldron calls this conte nt abstraction. Second, with

regard to the way they were adopted, directives have to be the result of a process of

representation of societal i nterests and opinions that abstract s from the particular

identities of constituents to consider them on ly under certain universalizable as-

pects. Waldron refers to this as age nt abstraction. He goes on to argue that the two

are connected in t he sense that agent abstraction involved in political representa-

tion is associated with content abst raction (ibid., 137–8). Waldron thus holds that

the distinct ive contribution of representative legislat ures to the collective project of

articulated governance i nvolves passing laws that are general.

By way of further illumi nating the li nk, if any, between representative lawmak-

ing and the generality of statutes, we must begin by locating it more specifically.