Abstract

I define and defend a non-democratic authority with the power to annul the decisions of democratic branches of government when such decisions infringe upon citizens’ basic rights and liberties. I refer to this non-democratic authority as Liberal Aristocracy. The argument for Liberal Aristocracy has two parts: the first part demonstrates that Liberal Aristocracy will arrive at decisions that further the moral end of sustaining citizens’ rights; the second part holds that Liberal Aristocracy is a moral means to this end. First, I discuss two existing arguments for non-democratic authorities – Platonic Aristocracy and Constitutional Court Judges. I claim that Plato’s argument is unsuccessful because it relies on controversial metaethical premises that are unlikely to provide a basis for rights. Liberal justifications of the power of Constitutional Courts are argued to be incomplete because they do not designate an authority that is qualified to decide when citizens’ rights are infringed by democratic branches of government. Nor do they show that such an authority is in fact required if citizens’ rights are to be protected. In order to supplement the liberal argument for the power of Constitutional Courts I develop an account of Liberal Aristocracy, which rests on the idea that Constitutional Court Judges should possess moral expertise. I claim that moral expertise qualifies Judges to decide when citizens’ rights are violated by democratic decisions. Furthermore, I argue that decisions taken democratically will sometimes encroach on citizens’ rights. Claims and are shown to justify the non-democratic authority of Liberal Aristocracy. The second part of the argument for Liberal Aristocracy examines arguments to the effect that only democratic procedures can be morally legitimate, even if other decision procedures arrive at outcomes that provide greater support for citizens’ rights. Three claims are offered in support of this idea. First, democracy is claimed to be necessary to support deliberation. Second, democracy is seen as the only procedure that can uphold the value of autonomy by securing citizens’ consent. Third, it is argued that non-democratic procedures will not recognise the equal status of citizens. I hold that these three claims are false and that Liberal Aristocratic procedures can be morally legitimate.