The Subjects of Collectively Binding Decisions: Democratic Inclusion and Extraterritorial Law

Abstract

Citizenship and residency are basic conditions for political inclusion in a democracy. However, if democracy is premised on the inclusion of everyone subject to collectively binding decisions, the relevance of either citizenship or residency for recognition as a member of the polity is uncertain. The aim of this paper is to specify the conditions for being subject to collective decisions in the sense relevant to democratic theory. Three conceptions of what it means to be subject to collectively binding decisions are identified and examined, referring to those subject to legal duties and legal powers or to those subject to legal duties and state institutions. The contrast between them is most clearly illustrated in relation to non‐residents, those not present in the territory of the state. The extraterritorial dimension of the law thus highlights a fundamental ambiguity in the theory of democracy concerning the extension of political rights.

The Democratic Boundary Problem Reconsidered

“…18 Including my (Arrhenius 2005). 19 For similar distinctions, see (Beckman 2009). democracy not as a normative ideal but in terms of a non-normative ideal type of democracy (just as we can give ideal type definition of a circle). In itself, an answer to this problem has no normative implications since it says nothing about who ought to be given a say, all things considered.…”

“…What voting rights, if any, should non-citizens have? Should they enjoy these rights only at certain levels-say, local rather than national elections-or only over certain issues (Beckman 2006)? Analogous questions arise from the perspective of migrants' countries of origin (Grace 2003;Bauböck 2006Bauböck , 2007Rubio-Marín 2006;López-Guerra 2005.…”

“…For example, I'm bound by the law in Sweden to wear seat belts whenever traveling in a car 29 See e.g., (Sen 1970); (Dworkin 1981a(Dworkin , 2000. 30 See (Miller 2009); (Beckman 2006(Beckman , 2009(Beckman , 2014; (Tännsjö 1992); (Owen 2012); (López-Guerra 2005); and (Dahl 1989). For an extensive discussion of the All Subjected Principle, see (Goodin 2016).…”

“…Most importantly, the right currency of the All Affected Principle might in the final analysis turn out to be a quite complicated combination of different 33 See (Goodin 2016) for an extensive discussion of this issue. 34 A recent suggestion is that the All Subjected Principle should be interpreted as including both requirements; i.e., a person is subjected in the relevant sense if and only if the person is both subject to legal duties and coercive institutions (Beckman 2014). 35 Such an explication would also consider whether people can me more or less legally affected by different laws.…”

Freedom as Non-domination and Democratic Inclusion

“…the claim that subjection to public power follows only from subjection to legal norms and the claim that an agent is subject to domination by another agent only if the other agent has the capacity to remove or replace the options available to the first agent by the use of coercion. Together, these are two necessary and sufficient conditions for democratic inclusion (Beckman 2014). The neo-republican conception of inclusion applies to anyone subject to legal duties if they are backed up by the capacity of the state to enforce them.…”