Democratic Legitimacy and the Paradox of Persisting Opposition

Abstract

The paradox of persisting opposition raises a puzzle for normative accounts of democratic legitimacy. It involves an outvoted democrat who opposes a given policy (because she takes it to be unjust) while supporting it (because it is the upshot of majority rule). The article makes a threefold contribution to the existing literature. First, it considers pure proceduralist and pure instrumentalist alternatives to solve the paradox and finds them wanting on normative, conceptual, and empirical grounds. Second, it presents a solution based on a two‐level distinction between substantive and procedural legitimacy that shows that citizens are consistent in endorsing the upshot of democratic procedures while opposing it. Third, it unpacks three reasons to non‐instrumentally endorse such procedures namely, the presence of reasonable disagreement, non‐paternalism, and the right to democratically do wrong. In so doing, the article shows that those accounts of democratic legitimacy that rely on reasonable disagreement as a necessary condition for democratic procedures being called for are flawed, or at least incomplete, and offers a more complete alternative.