Welcome to the first instalment of our virtual reading group on David Estlund’s Democratic Authority: A Philosophical Framework. Today’s post will focus on chapter 1, which offers a synopsis of the book’s central arguments and conclusions.
Estlund begins by noting the apparent tension between democracy and political quality. The masses seem ill-suited to making the best political decisions, and thus many democratic theorists see their primary task to be one of explaining why democracy is valuable or desirable despite the risk it poses to making good decisions. Estlund takes a different approach. He claims that it is in fact democracy’s tendency to produce good decisions that explains democracy’s legitimacy and authority. Legitimacy, according to Estlund, refers to the moral permissibility of the state issuing and enforcing commands due to the process by which they were produced, whereas authority refers to the power of one agent to morally require or forbid actions by others through commands (p. 2). Estlund’s central thesis is that ‘democratically produced laws are legitimate and authoritative because they are produced by a procedure with a tendency to make correct decisions’ (p. 8).
Perhaps the most obvious objection to this thesis is that it doesn’t conform with how we make other kinds of decisions. Democratically taken decisions about medical matters are not likely to yield correct results – we go to the experts in medical matters. Why should politics be any different? But, Estlund notes, there are important disanalogies between the medical and political examples: doctors are recognized medical experts, and this is why we usually consent to their decisions. Doctors’ authority to make medical decisions for us derives from our consent, and cannot be derived from the mere fact of their expertise. Moving directly from expertise to authority is what Estlund calls the expert/boss fallacy: just because you know more doesn’t make you boss.
Furthermore, the problem we face in the political arena is that there is no one individual or group to whom we are willing to cede authority on the grounds that they know best. There are no recognized political experts. But Estlund also warns against going too far in the other direction. Just because we recognize no political experts among us does not mean that our political decisions must be acceptable to everyone – we cannot make our political decisions hostage to the clearly irrational or immoral. He concludes instead that political decisions need to be justified in a way that is acceptable to suitably qualified individuals, with ‘suitably qualified’ requiring further specification.
There are two opposing worries about this Rawlsian idea of requiring political decisions to be acceptable to some idealized constituency. The first is that the constituency is not inclusive enough, but as Estlund insists, how can it be wrong to exclude Nazis or other clearly unjust people from the constituency of acceptability? The opposite worry is that it is too inclusive, especially if some of the qualified points of view turn out to be false. Why not simply insist that political decisions must be true? Estlund suggests that the idea that political decisions should be acceptable to qualified persons or points of view need not conflict with the aim to embrace only the truth, for it may be true, at least when it comes to political decisions, that we have sound moral reasons to follow the ‘acceptable to qualified points of view’ condition.
The next objection Estlund confronts is that democracy’s value inheres not in its tendency to produce correct decisions, but rather in its procedural fairness. Democracy gives everyone an equal chance to influence the outcome, and this is why democratic decisions have legitimacy and authority. Estlund’s response is to point out that such purely fairness-based arguments have no plausible way of explaining why we should prefer a system of deliberation and voting over a randomized decision procedure such as a coin toss. If you believe it would be wrong to toss a coin, Estlund suggests, it must be because there are epistemic reasons that count against doing so.
Though some might think epistemic concerns justify an epistocracy, rule of the experts, the problem we face is lack of agreement regarding who the experts, if any, are. So how can we justify democratic procedures on epistemic grounds, especially when we know they will surely get the wrong result some of the time? Here Estlund makes extensive use of an analogy with the jury system. The jury system is an exemplar of what Rawls calls imperfect procedural justice. We have an independent standard of correctness – convicting all and only the guilty defendants – and the jury system is valuable insofar as it tends to regularly deliver correct results. If it regularly convicted the innocent and set the guilty free we would not grant that system the authority and legitimacy that we do. Estlund argues democracy’s authority and legitimacy has a similar structure. Democratic procedures, he claims, are more likely to deliver correct results than random decisions, and they represent the epistemically best decision-procedure among the acceptable alternatives. This defence of democracy is called epistemic proceduralism.
But what about consent? Traditional theories hold that there can be no authority without actual consent. Given that few people actually consent to democratic states, how can they then have authority? Estlund points out that even consent theories will specify the conditions under which consent becomes void (e.g. duress). But then shouldn’t there also be conditions under which non-consent becomes void, that is, conditions under which it would be illegitimate or impermissible to refuse to consent to someone else’s authority? Estlund suggests that if it would be morally wrong to refuse to consent to someone’s authority then any non-consent is void. In such cases there is what Estlund calls normative consent.
The relevant question is then whether it would be morally wrong to refuse to consent to democratic authority? Estlund claims the answer to this question is yes, largely because of democracy’s tendency to produce substantially just laws and policies, as well as the fact that there is no non-democratic system of political decision-making that could be endorsed by all qualified points of view as doing a better job of making just decisions.
Estlund recognizes that if democracy is going to deliver the epistemic goods we will need a conception of democracy that makes fairly significant demands of citizens – citizens will need to be engaged, informed, and not purely self-interested. One worry is thus that Estlund’s theory is hopelessly utopian. He responds to this worry with a counter-charge, namely, that political philosophers should be wary of what he calls utopophobia: ‘the fear of normative standards for politics that are unlikely to be met’ (p. 14). Estlund claims that just because people won’t act in the required way doesn’t show that they couldn’t do so, and it’s only when the latter is true that our normative theory has become problematically utopian.
Estlund goes on to distance his theory from two other views about democracy’s authority. The first is Condorcet’s Jury Theorem. Estlund denies this theorem provides much evidence of real democracies’ epistemic quality for two main reasons. First, the jury theorem works best for binary choices whereas real democracies rarely face only two choices. Second, the jury theorem famously requires people to have a better than random chance of getting the correct answer whereas Estlund doubts this will regularly be true of real people who are known to have many cognitive biases.
The second view Estlund wants to reject is the idea that democratic procedures get their authority because they are somehow analogous to the models of contractualism popular in contemporary moral and political philosophy. There are two critical disanalogies which undermine this view: (a) real democracies don’t, and shouldn’t, offer individuals a veto, but an individual veto is an essential part of most contractual theories, and (b) parties in contractual theories don’t address the question of justice or rightness directly – they are usually motivated by some more partial concern, whereas in real democracies we will need citizens to directly address the question of what justice requires.
The chapter concludes by noting that the epistemic proceduralist approach doesn’t need democracy to have a very high probability of delivering correct decisions – democratic procedures just need to do better than random and be the best acceptable mechanism in epistemic terms. Estlund also reminds us that his theory may have very different institutional implications than theories which claim there is some intrinsic value in modelling our real world democratic institutions on ideal procedures. Because Estlund sees the value of democratic procedures as instrumental rather than intrinsic, if non-ideal conditions require very different institutions to deliver correct decisions, then we may be justified in radically departing from those procedures that would track (or constitute) the truth under ideal conditions.
There’s an awful lot one could say about this first chapter since it provides an outline of all the book’s main arguments, but I’ll restrict myself to just a couple of simple points. I know that all these issues receive more detailed treatment in later chapters, and I’m wary of pre-empting the discussion of those later chapters (plus I haven’t read them all yet!). I’m hoping, however, that there’s no real harm in flagging some issues now, which we can always return to in later weeks.
One obvious worry for any epistemic theory is the required premise that there are always correct and incorrect, or at least better and worse, political decisions. Don’t we sometimes make democratic decisions where there is no preference-independent standard of correctness? Suppose our city has an annual cultural/sports budget, and the question arises as to how that budget should be spent this year. We can either spend the money on an art exhibition or we can spend it on upgrading the local football facilities. If we assume that everyone already has their just share of resources, does it make sense to talk about an objectively correct decision in this case? Can’t citizens simply vote their preference? But if there is no epistemic value, where does the authority or legitimacy of the decision come from?
Of course Estlund could respond by saying that, in examples like the one above, the correct decision is the one that tracks the majority’s preferences, thus democracy will be an ideal way of tracking correctness. But this invites a further worry, namely, that we need to have some sense of what constitutes ‘correct’ (or better and worse) decisions. We can be confident about the jury system because we have our independent standard in hand: convicting all and only the guilty. But, as Waldron and others have pointed out, isn’t one of the problems we face in politics the fact that we cannot agree on what would constitute a correct decision? Utilitarians will favour one view, right-libertarians another, Rawlsians another, and so on. Without some agreement on what constitutes correctness, how can all qualified points of view accept that democracy is the most reliable epistemic procedure? This looks especially difficult for Estlund to address given his rejection of the democracy/contractualism analogy, part of whose power is its alleged ability to design procedures that will yield just results even when we don’t know, or can’t agree, on what justice requires.
A third concern is whether epistemic proceduralism suffers from the same kind of rule-worship objection as standard forms of rule-consequentialism. Estlund readily admits that democracies will not always produce correct decisions, they only tend to do so more than the alternatives. But when we are very confident that a democratic decision has produced an incorrect result, why should we accord that decision any legitimacy or authority? If what we really care about is correct decisions, surely we have no epistemic reason to treat an incorrect decision as binding just because it’s the result of a generally sound decision-making procedure?
Fourth, recall Estlund’s claim that fairness-based theories of democratic authority and legitimacy cannot explain why we should prefer deliberation and voting rather than a randomized decision procedure between policy options like a coin toss. Estlund notes that such randomized procedures also give everyone an equal chance to influence the outcome since they give everyone no chance (p. 6). But what if we supposed that what matters is giving each person the greatest chance possible, consistent with a similarly large chance for others: a greatest equal chances principle. Here a coin toss between policy options or political parties wouldn’t do the trick since this applies the greatest equal chances principle to policy options or parties rather than to persons. The only randomized procedure (i.e. not voting) that could satisfy the greatest equal chances principle with regard to persons would be a lottery system which selected a citizen or group of citizens to make each political decision. This procedure seems, at least to me, to have a greater claim to authority and legitimacy than the coin toss between proposals.
Fifth, Estlund says that in order for the charge of utopianism to be troubling the critic must show that the normative standard under discussion is not only something that will never happen, they must show ‘it is not something people could do (or at least not without more effort or sacrifice than it’s appropriate to require)’ (p. 14). Though Estlund intends this passage about utopophobia to serve as a reply to those who think his theory might be too utopian, I was left wondering whether a theory can ever be too utopian. For starters, if a theory asks people to do more than it is appropriate or reasonable to require of someone, then this theory is not utopian, it’s just an incorrect moral theory. If it’s too much to ask me to sacrifice my life to save someone from paralysis, then this requirement is not utopian, it’s just mistaken. This leaves normative requirements that are physically impossible – demands that contradict laws of nature or human nature. But even here we might think there’s nothing troubling about a normative ideal that cannot be realized. Suppose we believe that justice requires there to be no inequalities between persons caused by brute luck. It may be impossible to achieve this ideal given the way natural talents and dispositions are distributed amongst persons. But this impossible ideal nevertheless gives us something to aim at, and especially when we cannot be sure what is impossible and what merely looks impossible, it may be very important to begin with normative ideals that are not constrained by any ‘facts’ about the human and natural world. If this is right, then the definition of utopophobia could be more inclusive than Estlund’s – it could be the unfounded fear of normative standards that are unlikely to be met or even impossible to meet.
Finally, I’m not sure how Estlund’s epistemic approach coheres with his idea that political institutions need to be justified in a manner acceptable from all qualified points of view. Suppose that there are in fact ‘political experts’ among us, the problem is simply that all qualified persons cannot agree on who these experts are. But let’s also suppose the experts know they are expert, and also possess the means to seize power and implement their decisions. Estlund’s theory tells us this epistocracy would lack legitimacy because it cannot be justified to all qualified persons. The ‘all qualified points of view’ test thus represents a constraint on the pursuit of epistemic value, and it’s natural to wonder what justifies this constraint given the great weight epistemic considerations carry in Estlund’s theory. Is it respect for persons that motivates this constraint? And if it is something like respect for persons, why doesn’t this play a more direct role in accounting for democracy’s authority and legitimacy, that is, why aren’t democratic procedures generally binding because the process of deliberation and voting manifests a respect for persons as agents or practical reasoners, each of whom has their own views about justice and the good?