That assumes, implicitly, that “expressing the autonomy of the citizens” (whatever that means) is a primary value. I’m not sure why I should believe that. Indeed, I deny it.

What people really want is good laws and legal systems. Democracy is a tool — nothing more or less. If it produces better results, good. If it does not produce better results, then defending it is mere religion rather than based in a rational consideration.

Paul says that “My claim is simply that all else being equal, the fact of being a democracy has some value in itself.” I’m not sure I buy that. It is only true if you have some sort of mystical attachment to “The Collective Will Of The People”. I can’t see why one should care about “The Collective Will” — indeed, I think one often needs protection from said collective will.

Paul also says that he “[doesn't] deny that, over all, democracies also produce better policies”. I’m unsure about that, too. Sir John Cowperthwaite did wonderful things for Hong Kong as, effectively, its financial dictator. Perhaps democracies produce better policies, and perhaps they don’t — I would say that is an assumption rather than a proven hypothesis.

To the extent that you view democracy as divinely blessed, you will not be able to optimize it as a social technology judged on its real-world consequences.

First, there is the question of whether you think voting is a way of conveying legitimacy in the first place. If the majority votes to kill all the atheists, is this “legitimate” just because we think “democracy” is somehow more “legitimate” than other forms of statism? I would argue that at best you can argue that a strong government, be it a democracy or some other type, has the power (as a practical matter) to introduce and enforce laws. “Legitimacy” is a philosophical and moral question.

Now, on the question of practical questions, can just “any” set of laws work? I would argue no. The US has a strong, generally enforceable legal system not because of “legitimacy” but because enforcement of the legal system as it is constructed is in the interests of most of the participants most of the time. If it ceased to be in the interest of most people to cooperate with the system most of the time, the system would disintegrate. That means the space of laws and legal mechanisms that are feasible is much smaller than the breadth of all possible laws.

You say, “Perry: I’m familiar with the fact that judges make law. The point is, again, that all these things you identify are ultimately accountable to legitimate legislators, once again, in a way that jury fiat would not be.”

I deny that the important accountability is to the legislature — the important accountability is to reality. Laws that ignore what can and can’t work either fail to be enforced or cause serious damage to society.

Right now, lots of international contracts pick New York in their choice of laws, because New York’s laws happen to be particularly good for these purposes. Certainly the New York State legislature could “legitimately” (at least in some people’s eyes) screw up the legal system in New York, but then people would pick another jurisdiction on their contracts in their choice of laws, and those businesses based in New York itself would either be damaged or leave. Saying that the legislature can do what it wants is much like saying that anyone who wants to can choose to eat what they want. Certainly you can “choose” to eat either bread or rat poison, but if you eat rat poison, you won’t last for long. The legal systems that result in thriving economies and such are not arbitrary. The “choices” of the legislature are constrained, and when those constraints are violated, society suffers.

So the question is not one of democracy, but one of economic analysis of law. “Legitimate accountability” is a matter of perception, but what functions is not merely a matter of perception. What is primary is what will lead to a thriving society, and that has little to do with the whims of an often irrational populace and legislature, and much more to do with what actually can work in the real world.

To abuse an old joke, just because you’re a lawyer, why do you think you understand law?

More to the point, a lot of people here have backgrounds that lead them to analyze law in terms not of “the will of the people” but rather in terms of evolutionary theory, economic theory, and other similar non-standard bases.

I have to say that, in general, I find “the will of the people” an unsatisfying and uninteresting basis of analysis, not only because in general a democracy does not reflect the will of the people, and not only because if it did reflect the will of the people it would cause enormous harm given what the will of the people is usually like, but also because law evolves in numerous instances in which there is no such thing as democracy at all.

Taking just one important example, most international commercial law has come not from the will of any nation of people but rather from evolved norms among those engaging in trade. The modern practice of jurisdictional shopping in selecting the choice of laws for contracts reflects not the “will of the people” but rather the will of the counterparties. All this tends to make the idea that the “will of the people” is important seem rather flawed. In your theory, the act of endorsing a check came about because of the great “will of the people” and elections, but in reality it has no such origin at all — it came about because of decisions in private merchant courts hundreds of years ago, courts that were operating entirely outside of governments let alone democracies. The fact that the UCC codifies such things is much more a product of the consensus of merchants wishing to maintain needed stable frameworks for trade than the “will of the people”.

On other related topics, I suggest that you read Oliver Wendell Holmes book on Common Law some time, in which he not only explains that judges often make law in the guise of interpreting it but the fact that it is almost impossible to avoid a system in which judges make law this way. This activity of judges predates democracies by thousands of years.

Anyway, enough on that for now.