Democracy and Law: Situating Law within John Dewey’s Democratic Vision

Abstract

In this paper I argue that John Dewey developed a philosophy of law that follows directly from his conception of democracy. Indeed, under Dewey’s theory an understanding of law can only follow from an accurate understanding of the social and political context within which it functions. This has important implications for the form law takes within democratic society. The paper will explore these implications through a comparison of Dewey’s claims with those of Richard Posner and Ronald Dworkin; two other theorists that intimately link law and democracy. After outlining their theories I will use the recent United States Supreme Court case, Citizens United, to discuss how practitioners of the three theories would decide a case that implicates both the rule of law and democratic procedures. In order to do this judges following each theory, “Dews, Dworks and Poses,” are imagined. Ultimately this paper will show that drastically different results to Citizens United would follow. The (tentative) conclusion of the paper is that Dewey’s conception of the relationship between democracy and law is a superior option to either that of Dworkin or Posner.