Daniele Santoro

Proceduralism and the epistemic dilemma of Supreme Courts

Abstract Proceduralists hold that democracy has a non-instrumental value consisting in the ideal of equality incorporated by fair procedures. Yet, proceduralism does not imply that every outcome of a democratic procedure is fair per se. In the non-ideal setting of constitutional democracies, government and legislative decisions may result from factional conflicts, or depend on majoritarian dictatorships. In these circumstances, Supreme Courts provide a guardianship against contested outcomes by enacting mechanisms of checks and balances, constitutional interpretation and judicial review. Yet, in virtue of this role, Supreme Courts exercise a form of epistocratic power, which rests at odds with the ideal of political equality. We analyse this dilemma and propose a solution, arguing that Supreme Courts do not run unrestrained decisions; rather their decisional power is bound to the protective function of fundamental rights, in which their constitutional mandate ultimately consists.

A justification of whistleblowing

Whistleblowing is the act of disclosing information from a public or private organization in order to reveal cases of corruption that are of immediate or potential danger to the public. Blowing the whistle involves personal risk, especially when legal protection is absent, and charges of betrayal, which often come in the form of legal prosecution under treason laws. In this article we argue that whistleblowing is justified when disclosures are made with the proper intent and fulfill specific communicative constraints in addressing issues of public interest. Three communicative constraints of informativeness, truthfulness and evidence are discussed in this regard. We develop a ‘harm test’ to assess the intent for disclosures, concluding that it is not sufficient for justification. Along with the proper intent, a successful act of whistleblowing should provide information that serves the public interest. Taking cognizance of the varied conceptions of public interest, we present an account of public interest that fits the framework of whistleblowing disclosures. In particular, we argue that whistleblowing is justified inter alia when the information it conveys is of a presumptive interest for a public insofar as it reveals an instance of injustice or violation of a civil or political right done against and unbeknown to some members of a polity.

What Is Whistleblowing

The practice of fearless speech occupies a distinctive yet neglected role within the history of political thought. In this chapter we contextualize whistleblowing within such a tradition and define its proper scope. In the first part we offer an introduction on the origin of the term and a discussion of some early cases. We pay particular attention to the ancient Greek practice of parrhesia, and then situate whistleblowing within the debate on publicity. In the second part of the chapter we turn to the current debate on the morality of whistleblowing and review some conceptions proposed in the literature: the standard theory, complicity, the moral choice view, integrity, civic duty, and the question of loyalty. In the final part we lay down the features of a comprehensive definition. We introduce an important distinction between political and civic whistleblowing, provide a detailed account of both forms, and clear some confusions that have emerged in the recent literature.

Public Interest and the Threat of Corruption: A Case for Civic Whistleblowing

Political corruption is a fraudulent exchange for the mutual advantage between parties entrusted with public power, and whose costs bear on third parties who do not enjoy the benefit of that transaction. A defining feature of political corruption is that it affects the public interest of constituencies by diverting public funds for personal advantages, dumping the costs of diversion on the polity at large. In this chapter, we argue that the role of civic whistleblowing in the fight against corruption should be properly understood within a conception of public interest. In this chapter, we argue that whistleblowing contributes to the public interest when it exposes crimes that cause an unfair allocation of the burdens of cooperation.

The Threat of Secrecy

National security and strategic interests of the modern state require a certain amount of secrecy. However, state secrecy poses a dilemma for constitutional democracies, whose legitimacy depends on the transparency of democratic decision-making. In this chapter, we defend the argument that citizens’ right to know limits the prerogatives of state secrecy. We start from the debate on the balance between liberty and security and provide some criticisms of the idea that striking a balance is always justified in a democracy. We pay particular attention to the role secrecy plays in matters of national security and the effects of unrestrained secrecy on the enjoyment of rights. We then introduce the notion of epistemic entitlement of rights and argue that secrecy is legitimate within a constitutional democracy only when citizens enjoy a specific right to know in which circumstances their rights can be legitimately limited or restricted. We call this the right of assessment.

A Justification of Political Whistleblowing

In this chapter we provide a justification of political whistleblowing and articulate some criteria for the permissibility of disclosures. In the first part we discuss the main criticisms against political whistleblowing. In particular, we address the objections from the breach of obligation and trust, lack of patriotism, harm to national security, vigilantism, lack of accountability, and imperfect information. In the second part we define the epistemic circumstances of disclosure, and we specify three conditions for the permissibility of political whistleblowing: the communicative constraints, intent, and public interest.

Charting Dissent: Whistleblowing, Civil Disobedience, and Conscientious Objection

How should one qualify political whistleblowing within a democratic system, governed by the rule of law? Whistleblowing is often considered a form of principled, sometimes even democratic dissent. In this last chapter, we discuss what kind of dissent whistleblowing is. We discuss various forms of dissent and argue that whistleblowing is neither a case of conscientious objection nor a case of civil disobedience. However—we conclude—it is a distinctive form of civil dissent against the threat of unruled government secrecy.