This paper examines the legitimacy of extraterritorial border controls, specifically maritime interceptions, through the lens of state authority. It argues that legitimacy requires de facto authority, which states may not always possess over migrants intercepted in international waters. Drawing on Raz’s theory of authority, the paper distinguishes between weak and strong conceptions of de facto authority and evaluates whether states meet these conditions during maritime interceptions. The analysis suggests that while states claim legal authority through domestic and international law, their authority is often not recognized by migrants, thus failing the strong conception of de facto authority. Consequently, maritime interceptions may not constitute legitimate or illegitimate exercises of authority but rather acts of brute power. The paper also explores how international law claims authority over state actions and its limitations in governing extraterritorial border controls. The findings challenge conventional views on state legitimacy and propose that intercepted migrants may not be bound by state directives, raising important ethical and legal implications for migration governance.

Machine learning algorithms (ML) are increasingly used to support decision-making in the exercise of public authority. Here, we argue that an important consideration has been overlooked in previous discussions: whether the use of ML undermines the democratic legitimacy of public institutions. From the perspective of democratic legitimacy, it is not enough that ML contributes to efficiency and accuracy in the exercise of public authority, which has so far been the focus in the scholarly literature engaging with these developments. According to one influential theory, exercises of administrative and judicial authority are democratically legitimate if and only if administrative and judicial decisions serve the ends of the democratic law maker, are based on reasons that align with these ends and are accessible to the public. These requirements are not satisfied by decisions determined through ML since such decisions are determined by statistical operations that are opaque in several respects. However, not all ML-based decision support systems pose the same risk, and we argue that a considered judgment on the democratic legitimacy of ML in exercises of public authority need take the complexity of the issue into account. This paper outlines considerations that help guide the assessment of whether a ML undermines democratic legitimacy when used to support public decisions. We argue that two main considerations are pertinent to such normative assessment. The first is the extent to which ML is practiced as intended and the extent to which it replaces decisions that were previously accessible and based on reasons. The second is that uses of ML in exercises of public authority should be embedded in an institutional infrastructure that secures reason giving and accessibility.

Extraterritorial border controls prevent migrants from arriving at the territory of the state and effectively undermine rights to apply for asylum and protections against non-refoulement. As a result, a wealth of scholarship argues that external border controls are illegitimate exercises of state power. This paper challenges two versions of this argument, first, the claim that carrier-sanctions are illegitimate because they subject migrants to morally impermissible forms of coercion and, second, the claim that carrier-sanctions are illegitimate because they subject migrants to illegitimate claims to authority.

Against coercion-based accounts of legitimacy, this paper defends the view that while carrier-sanctions are coercive, the coerciveness of a policy is not relevant to its legitimacy. What is relevant is instead whether the authority claimed by the state is legitimate. Against authority-based accounts, this paper argues that states are unable to claim authority in the relevant sense over migrants that are present in the territories of other states.

The paper concludes by suggesting that the charge that carrier-sanctions are illegitimate should shift towards the state that allows carriers to enforce these policies on their territories. No state has the legitimate authority to permit other states to pressure carriers to prevent migrants in need of protection from travelling. The state that introduces carrier-sanction legislation, on the other hand, is not exercising illegitimate authority though they may act contrary to demands of justice.

Previous literature explains the fact that sub-national elections tend to be more inclusive than national elections by reference to the level of the election. This paper argues that the constitutional status of the election is more decisive. This is illustrated by evidence from the British Overseas Territories (BOTs) where resident citizens without ‘belonger’ status are excluded from the vote. Elections in BOTs are less inclusive because they are significant to the future constitutional status of the territory. Finally, the paper considers the implications of our thesis for the ongoing dispute on belongership between the UK and BOTs.

Recognising widely held concerns regarding ‘presentist’ biases in democratic institutions, thischapter challenges the contention that democratic legitimacy inexorably requires the inclusion of futuregenerations in democratic decisions. According to two requirements of democratic legitimacy – inclusionand constitutional empowerment – people should be empowered to participate in decisions about policyand law, and to determine the rules structuring the political framework. Drawing a distinction betweenthese requirements, this chapter contends that though it may be feasible to ‘include’ future generations forproxy representation, future generations cannot enjoy ‘constitutional power’.This chapter applies two separate understandings of constitutional power to future generations, the‘constituent power’ to create constitutional frameworks, and the ‘constituted power’ to amend suchframeworks’ norms. It contends that neither is achievable for unborn people and that full intergener‐ational democratic legitimacy is therefore impossible. Reason for concern with the long-term effectsof contemporary policies and political systems still remain, of course. But in attending to them, justicerather than democratic legitimacy should guide our judgments.

Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized.

This book provides a general theory of democratic inclusion for the present world. It presents an original contribution to our understanding of the democratic ideal by explaining how democratic inclusion can apply to individuals in a variety of contexts: the workplace, social clubs, religious institutions, the family, and, of course, the state. The book explores the problem of democratic inclusion, what it means to be subject to de facto authority, how this conception translates into legal systems, and the relationship between territorial claims by the state, and law’s claim to legitimate authority.

The volume will be of interest to scholars and researchers of politics, especially political theory and democracy.

Should artificial intelligences ever be included as co-authors of democratic decisions? According to the conventional view in democratic theory, the answer depends on the relationship between the political unit and the entity that is either affected or subjected to its decisions. The relational conditions for inclusion as stipulated by the all-affected (AAP) and all-subjected principles (ASP) determine the spatial extension of democratic inclusion. Thus, AI qualifies for democratic inclusion if and only if AI is either affected or subjected to decisions by the political unit in relevant ways. This paper argues that the conventional view is too simple; that it neglects democratic reasons to recognize only agents and/or moral patients as participants in decision-making. The claim defended is that AAP and ASP implicitly affirm requirements for agency and patiency. In ASP, the entity included must be an agent understood either in terms of legal status, capacity to comply with the law or ability to recognize legitimate authority. In AAP, the entity included must be a patient, understood either in terms of capacity for sentience or consciousness. Thus, the idea here is to explore the potential democratic inclusion of artificial intelligences by an updated account of the relevant conditions of agency and patiency that are implicit in democratic theory. Although conceivable that AI is or will be either affected or subjected in relevant ways to decisions made by political units, it is far less clear that AI will ever be agents or patients in the sense required for democratic inclusion.