Beyond the Republican Revival. Analyzing Eric Ghosh‘s democratic perspective

Contemporary literature on the republican revival is mainly produced from the standpoint of legal theory. The most common critical assessments depart from the defense of a more or less robust republican, liberal or communitarian conception of democracy. In this sense, there still exists an enormous theoretical gap for discussing republicanism from other conceptual points of view. Taking this gap into account, the paper will evaluate Ghosh‘s republican perspective from a social-epistemological approach.

As an intellectual tradition, republicanism has been divided into ancient and modern, national and regional, and plebeian and elitist strands. The conception of liberty within the plebeian and elitist traditions is different even if they share a conceptual core: non-domination. While plebeian liberty is conceived against oligarchic domination, the elitist conception developed by Skinner and Pettit, which informs Eric Ghosh‘s book, understands non-domination as an abstract principle that does not consider structural forms of oligarchic domination. In this presentation, I will first highlight this lacuna and then analyze the sortition mechanisms proposed by Ghosh from the point of view of plebeian liberty and the struggle against oligarchic domination.

The ‘counter-majoritarian difficulty‘ has led to an endless debate on the legitimacy of judicial review. Some scholars have challenged the authority of judges to interpret bills of rights, and proposed solutions based on the institutional design of judicial review. In his work, Ghosh has addressed this issue and come up with a design in which citizens exercise an eminently active role. He seeks to implement republican devices—such as sortition and citizens‘ juries—that are likely to alleviate the current problems of constitutionalism. However, while random samples can be a very attractive choice for institutionalizing a deliberative societal mechanism of constitutional interpretation, the egalitarian appeal of these mechanisms wanes in the absence of corrective methods for the selection process (e.g., quotas). Without these cautionary measures, no sampling method can be completely representative of the entire population, especially in highly heterogeneous societies.

In his most recent book, entitled Beyond the Republican Revival (Hart, 2020), Eric Ghosh makes an authentic interpretation of the political republican tradition and critically analyzes negative and positive republican conceptions of freedom. Towards the end of his work, in chapters eight and nine, Ghosh provides compelling conceptual, normative and historical grounds for a particular form of constitutional juries. Considering this theoretical framework, this paper will pursue three main goals. First, to justify the existence of a third republican perspective, a reflexive one—which a priori does not completely overlap with the representative and participatory republican perspectives explored by Eric Ghosh. Second, to contrast Eric Ghosh‘s citizen jury with the constitutional review proposals put forth by Philip Pettit, Richard Bellamy and Tom Hickey. Third, to propose a multi-situated constitutional review mechanism, which clearly differs from Eric Ghosh‘s civic institutional design.

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