Does the democratic provenance of the law ground a pro tanto duty to obey the law? According to the social-egalitarian argument, it does, because individuals have a pro tanto duty to uphold relations of social equality, and because, by obeying a democratically made law, they uphold relations of social equality. In this paper, I argue, however, that even if we grant the premisses of the argument, the conclusion still does not follow.

On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those considerations which make democratic law morally authoritative entail that judges ought to enforce the (...) public meaning, when this is clear, and that interpretation of the public meaning which is closest to the balance of moral reasons, when the public meaning is unclear. (shrink)

The separation-of-powers literature has entertained the possibility of differentiating governmental functions at a conceptual, pre-institutional level, as a way of defining the separation of powers. However, it can be objected that attempts at differentiating functions at this level cannot escape a problem of arbitrariness. In this article, I develop an account of the separation of powers which addresses this problem. On my account, the legislative function is defined by the creation of validity claims, understood as claims making it a matter (...) of normative common-knowledge that such and such normative attitudes hold for the interaction between agents. The executive-judicial function is defined by the specification of rights and other jural positions out of the validity claims. This account of the separation of powers has the double advantage that it works at a conceptual, pre-institutional level, and that it is able to distinguish between the functions in a non-arbitrary manner. In developing this account, I also consider its practical implications. I argue that the conceptual distinction between the legislative and the executive-judicial functions is expressive of rule-of-law values, and that this might render it a sufficient but not necessary condition for the institutional separation of powers. (shrink)