Here is the third installment of our reading group on Democratic Authority, which focuses on chapter 3, “An Acceptability Requirement.”
This chapter begins by restating the problem of the book, which is: Why not epistocracy? We know from the previous chapter that Estlund denies the Authority Tenet, which says that those with political wisdom are warranted in ruling over those without it. The problem with the Authority Tenet is that it rests on an illicit inference from expertise to authority, which Estlund calls the expert/boss fallacy. But what exactly makes this inference illicit? Why aren’t experts entitled to be bosses?
To answer this question, this chapter introduces and defends a family of principles, called acceptability requirements, which are meant to block the expert/boss inference and thereby defeat the case for epistocracy. The argument of the chapter proceeds in two main parts: the first defends the idea of an acceptability requirement against the twin objections of over- and under-inclusiveness; the second part argues that an acceptability requirement must appeal to the truth, which provides a basis for responding to the claim (advanced most forcefully by Raz) that “epistemic abstinence” renders incoherent political liberalism and other theories that make political recommendations on the basis of something other than the truth.
Before taking up the inclusiveness objections, Estlund makes some preliminary points. He explains that the burden of this chapter is to present a partial conception of legitimacy (permission to enforce commands), taking up the issue of authority in later chapters. The claim here will be that a necessary (but not sufficient) condition of legitimacy is that the exercise of political power must be “justifiable in terms acceptable to all qualified points of view” (p. 41). Estlund calls this a qualified acceptability requirement (QAR) (p. 45).
Estlund emphasizes that the idea of acceptability plays a special role in the argument for epistemic proceduralism. Recall that the argument is not that democracy is epistemically best, but rather that it is epistemically best among options that are generally acceptable. Estlund’s strategy is to defend this claim by arguing for a QAR. He will do that not by specifying and defending a particular version of the requirement, but by arguing for the very idea of it. Another way of putting this might be to say that Estlund wants to defend the concept of acceptability, without getting hung up on the details of any particular conception of it (e.g., Rawls’ idea of reasonableness).
With these preliminaries in place, Estlund turns to the over-and-under- inclusiveness objections:
The overexclusion objection says that QAR arbitrarily excludes some views from the category of qualified points of view. This objection entails what Estlund calls the actual acceptance view (AAV), which says that political justification must be acceptable to everyone subject to political authority. But if AAV required acceptance by all possible views, it would be absurd, since every political justification would conflict with some possible view. Thus, Estlund interprets AAV as requiring actual acceptance (or no actual objections) for legitimacy. Since someone will almost always actually object to political justifications, this is a radical and skeptical view that would probably render most, if not all, laws illegitimate.
Estlund does not immediately reject AAV because of its anarchical tendencies. He notes that, at least in some circumstances (e.g., those involving sexual contact), actual objections may defeat the permissibility of conduct even when those objections would otherwise be disqualified as irrational or immoral. For this reason, AAV is not easily defeated, let alone absurd.
Instead of refuting AAV, Estlund argues that there is a way to circumvent it. If AAV and QAR are both construed as necessary but not sufficient conditions for legitimacy, then the two views may be compatible. Interpreted as only a necessary condition, QAR says that legitimacy obtains only if there are no possible qualified objections. It does not rule out the possibility that legitimacy could be defeated by actual (or disqualified) objections. The same logic applies to AAV. It says that legitimacy obtains only if there are no actual objections. But it does not exclude the possibility that hypothetical qualified objections might also block claims of legitimacy.
Estlund claims that QAR need not be interpreted as both a necessary and sufficient condition for legitimacy. If QAR were construed in this way, legitimacy would obtain provided there are no possible qualified objections. But Estlund resists this move for two reasons. First, it needlessly conflicts with AAV, since actual objections would not serve as defeaters when there are no possible qualified objections. Second, and more important, QAR is not meant to establish the legitimacy of all laws resulting from democratic processes. It only needs to show that such laws may satisfy a condition of legitimacy that cannot be met by epistocracy, since that view is open to possible qualified objections.
The overinclusion objection says that QAR improperly allows doctrines that ought to be admissible in political justification to be defeated by false or incorrect views. Estlund offers an example involving a proposal for compulsory Bible study in public schools. The argument for the proposal is the following (p. 50):
- Christianity is a truth of the utmost importance.
- Truths of the utmost importance ought to be taught in public schools, a policy backed up with state force.
- Therefore, Christianity ought to be taught in public schools, a policy backed up with state force.
Now suppose that (1) is true. Suppose further that some QAR counts the rejection of Christianity as a qualified view. If this QAR is a necessary condition of legitimacy, there is a possible objection to (1) based on a qualified view, and the legitimacy of the proposal is defeated. Against this conclusion, the overinclusion objection says that if premises (1) and (2) are true, and if (3) follows validly from them, then the legitimacy of the proposal should be sustained against objections based on false doctrines.
Estlund claims that the overinclusion objection relies on a disputable view concerning the truth about legitimacy. In the example, this view is captured by premise (2), which says, in effect, that the truth of a doctrine is sufficient to make its enforcement legitimate. But of course that is precisely what QAR rejects. So here we have a dispute over what is true about legitimacy. Proponents of what Estlund calls the true objection view claim that their view – that the only qualified objections should be true ones – is true; whereas defenders of QAR believe it is true that at least some qualified objections may be false.
Estlund wants to dispel the idea that truth-lovers must accept the true objection view. Instead, they should accept whichever theory of legitimacy is, in fact, true. Estlund doesn’t claim to have shown the QAR is true. His more modest point is that the contrary view isn’t obviously true and that it should have no special appeal for those who think that truth matters.
Estlund begins the second part of the chapter by noting that QAR applies to itself. QAR says that political justifications must be acceptable to all qualified points of view. Since QAR is used in political justification, it must also be acceptable to all qualified points of view. This raises the question of whether those with qualified views can determine which views are qualified. Estlund argues that, if they can, QAR may turn out to be self-defeating, which would obviously pose difficulties for his argument against epistocracy.
To explain this problem, Estlund starts with a schematic form of QAR, which he calls AN (for “acceptance necessary”) (p. 53):
No doctrine is admissible as a premise in any stage of political justification unless it is acceptable to a certain range of (real or hypothetical) citizens C, and no one else’s acceptance is required.
As with QAR, because AN is a doctrine used in political justification, it applies to itself. Furthermore, on at least some specifications of C, AN will be self-excluding. As Estlund explains, AN is self-excluding when it “is not acceptable to the set of people it specifies as C” (p. 54). AN will not be self-excluding when it is accepted by the members of C. Only under this condition will it be possible to introduce AN into political justification.
Estlund points out that a logical consequence of AN’s application to itself is that, to avoid self-exclusion, the members of C must believe that acceptance by the members of C (and only those members) is necessary for the admissibility of a doctrine into political justification (p. 55). Estlund calls this the insularity requirement.
If many groups satisfy the insularity requirement preventing AN from self-exclusion, how can we select among them? Estlund notes that acceptability is a necessary but not sufficient condition for the admissibility of a doctrine under AN. This leaves open the possibility that other conditions might provide a basis for selecting a unique insular group. Estlund argues it is here that political liberalism must appeal to the truth in specifying which set of citizens is authoritative for determining the admissibility of political justifications. Without such an appeal, there is no way to select among various competing insular groups, all of which would render AN logically coherent.
Estlund summarizes the argument so far by describing three forms of political liberalism, which differ in how they approach the problem of specifying the criteria of admissibility. His preferred view is an undogmatic substantive political liberalism, according to which “no doctrine is available in justification unless it is acceptable to reasonable citizens, not even this doctrine itself (this makes it undogmatic), because such an acceptability criterion is true or correct independently of such acceptability (this makes it substantive)” (p. 57).
Estlund considers two final objections to this view of political liberalism. The first objection says that it is unnecessarily controversial to claim that QAR is true. The reason is that, regardless of its truth, QAR might be authorized by some higher-order comprehensive doctrine. Without going into the details here (maybe something for discussion), Estlund responds to this objection by arguing that when a higher-order doctrine endorses a doctrine of authorization (such as an acceptability requirement), the latter must be true.
The second objection is that there might be qualified disagreement about who is qualified under a QAR. Given the wide diversity of views presumably contained within the set of qualified points of view, it seems likely that the insularity of the set will break down, resulting in QAR’s self-exclusion. To avoid this outcome, Estlund suggests that one feature of qualification under QAR is acceptance of the true or correct account of who counts as qualified. This would eliminate the possibility of qualified or reasonable disagreement about qualification. This might seem suspicious, but, as Estlund notes, people are not disqualified just because they hold false views. They are disqualified when they hold false views about the criteria of qualification.
Estlund concludes by responding to Raz’s objection that “epistemic abstinence” renders political liberalism incoherent. Raz argues that a theory of justice must be recommended as true, or reasonable, or valid, or correct, etc. Estlund agrees that there must be some term that describes the theory’s actual justification or grounding of our moral powers and obligations. Estlund calls this “normative success” (62). He then argues that the success of a theory is distinct from its truth. For example, if QAR is true, and if a theory of justice satisfies QAR, the theory is successful because it is acceptable to all reasonable citizens. Indeed, the truth of the theory of justice may be irrelevant to its success. If I understand Estlund correctly, however, the criteria of success for any theory of justice will be determined by the truth about legitimacy.
I have a lot of questions about the arguments in this chapter, but here are a few just to get the ball rolling:
1. What justifies the truth of QAR, rather than the exclusive justification view (or the true objection view)? Isn’t the argument for epistemic proceduralism incomplete without a direct argument for the truth of this view of legitimacy?
2. Toward the end of the chapter, Estlund asks whether qualified people could reject the truth about qualifications. Since QAR applies to itself, the qualified can’t reject the requirements of qualification without making QAR self-excluding. Estlund’s solution is to say that a necessary condition of being qualified is to accept the correct account of qualification. If you reject the correct account, then you’re disqualified.
I’m wondering why this doesn’t this replicate the expert/boss fallacy (a point Estlund might be anticipating on p. 61). If you accept the correct account of QAR (including the proper specification of what it means to be qualified), then you’re a boss; that is, you have a say in whether coercive action is legitimate. If you don’t hold the correct views, then you’re excluded from the authoritative group. Consequently, you are not owed reasons you can accept from your point of view for how the state treats you. I can see that this view might allow people with certain false views to be bosses, and so it may be less exclusive than, say, a view that defined bosses in terms of those who believe some set of true beliefs. But Estlund’s view also picks out bosses by reference to those who hold a set of true beliefs, where the set is defined (in part?) by the belief in QAR. The people who should rule are those who know/believe/accept (the truth) about what counts as a qualified point of view. Although QAR’s truth may be part of an argument for rule-by-the-qualified, I’m not sure I see why it defeats the expert/boss fallacy. It seems rather to trade on it.
A response to this objection might be that knowing the truth about QAR is not the same as being an expert about substantive political matters. But to the extent that QAR is a doctrine used in political justification, it constrains substantive outcomes. Knowing about those constraints also means knowing about the right results to at least some set of substantive political decisions. Of course, there is still a difference between epistocracy and epistemic proceduralism, but I’m not sure I see why the difference turns on rejecting the expert/boss inference. It just looks like a difference about who counts as an expert.
Perhaps the argument will be that qualified people are experts about delimiting the domain in which no further claims from expertise are permissible. That makes some sense to me, except that the expert/boss fallacy remains in place with respect to limiting the political domain. I suppose I’m wondering whether there is still some illicit inference here from expertise to authority (or legitimacy?), even where a substantial domain remains in which further expertise is discounted.
3. The strategy of this chapter is to defend the abstract idea of an acceptability requirement. The over- and under-inclusiveness objections might be inspired by arguments against more specific conceptions of acceptability. I’m thinking mainly of Rawls’ political liberalism. For example, many critics have argued that the idea of reasonableness unfairly excludes certain conceptions of the good (and especially religious doctrines); while others have argued that reasonableness is overly inclusive because it would permit appeals to demonstrably irrational views (see, e.g., Gaus’ criticism of Rawls in Justificatory Liberalism). But there are other standard lines of argument, and I wonder whether these might be similarly abstracted and pitted against a generic acceptability criterion. I have two objections in mind. The first is that the value of legitimacy might be sacrificed for other moral values. Of course this objection isn’t unique to epistemic proceduralism, but it might help to know more about how the theory responds to this sort of argument without engaging in epistemic indulgence (by appeal to a fully comprehensive moral doctrine). The second objection involves the completeness of political justifications that satisfy an acceptability requirement. Without any specification of QAR, it would seem to be difficult to say anything about whether epistemic proceduralism can guide decisions about the exercise of coercive power. Here, epistocracy would seem to have a distinct advantage, since presumably experts would have right (or at least true) answers to difficult political questions. This objection has been pressed with some force against political liberalism. Are there reasons to think that concerns about completeness can be avoided by epistemic proceduralism?