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Judges exercise public power. The ideal of democracy demands that every exercise of public power should express the will of the people. The popular or general will does not exist, however, as a brute fact, given that the people or the nation can only be conceived as a unity in normative, not natural terms. In other words, the people or the nation has no will because it is not a subject with mental states. The popular or general will must therefore be attributed normatively to a people or nation, itself also a normative construct. This means that, in principle, every exercise of public power, not only judicial power, is problematic from the point of view of democracy. Taken to the extreme, one might even put in doubt whether the legislative powers of our states live up to the ideal of democracy.


Paper presented in the panel on “The Judicial Power in a Democracy” at SELA 2004, The Limits of Democracy, in Oaxaca, Mexico.