^aDepartment of Jurisprudence and Legal History, Faculty of Law, Tilburg University, Warandelaan 2, PO Box 90153, 5000 LE Tilburg, The Netherlands. E-mail: gdrosterij@rsm.nl

Received 23 August 2005; Accepted 17 October 2005.

Abstract

The article revisits two basic questions of political theory posed by Jon Elster. First, should the political process be defined as private or public, and second, should its purpose be understood instrumentally or intrinsically? Having posed these questions, Elster arrives at three views of politics: social choice (private, instrumental), republican (public, intrinsic) and discourse theory (public, instrumental). I argue for a fourth view (private, intrinsic), and explain Elster's omission of this model by referring to his underlying paradigm of politics, that is, as will formation. The main thesis in Elster's article is about whether the process of will formation should be relegated to the market mechanism or dealt with via deliberative forums. I reject this paradigm and argue instead for politics as jurisdiction. This notion of politics is concerned with the question of how both market and forum processes of will formation should be institutionalized. Defining politics as jurisdiction strongly improves the plausibility of the missing fourth model of democratic will formation, as a depiction of democratic will formation as private in its process and intrinsic in its purpose illustrates the importance of distinguishing between two levels of democracy: namely, the civil level of will formation and the political level of jurisdiction.