Here is the fourth installment of our reading group on Democratic Authority, which focuses on chapter 4, “The Limits of Fair Procedure.”
Estlund starts this chapter by applying the Euthyphro problem to democratic decision-making: are outcomes good because they are democratically chosen or democratically chosen because they are good? Estlund accepts that democracy is a matter of the collective authorization of laws, which is a procedural arrangement. While an infallible benevolent dictator might be able to bring about substantively just outcomes, there would be nothing democratic about that. Estlund’s argument, however – which occupies this chapter and the next – is that recent democratic theory has focused too exclusively on fair procedures to the exclusion of the independent rightness of decisions. This chapter criticizes the idea that procedural fairness can alone justify democratic procedures and begins criticizing normative social choice theory (e.g. Arrow), while chapter five continues the argument with focus on ‘deep deliberative democracy’.
Fair proceduralism regards the fact that voting is a fair procedure as sufficient justification without appeal to substantively good decisions, but procedural fairness alone cannot explain why we should let people have a say rather than decide randomly (p.66). Estlund’s favoured alternative, epistemic proceduralism “gives little or no role to procedural fairness”. That’s something I’ll comment on later, as I think it’s interesting to see how Estlund’s thought here has changed from an article published ten years previously, ‘Beyond Fairness and Deliberation’ (in J. Bohman and W. Rehg, eds., Deliberative Democracy: Essays on Reason and Politics) but it’s something I’ll be coming back to later. Here, Estlund’s reason for downgrading the importance of fairness is that it is only what he calls an ‘occasional value.’ Not everything that is not fair is positively unfair – something Estlund refers to as the non/un issue – and he gives the example of charity: giving unequally to beggars is not fair but nor is it problematically unfair. Some things are not required to be fair, so the question whether or not they are fair is unimportant.
Having already diminished the importance (or, perhaps more accurately, scope) of fairness, Estlund goes on to distinguish different kinds of fairness. Substantive fairness is a matter of each having what they should have. A law banning cyclists from public roads may be substantively unfair, but procedural fairness is a matter of how the law comes about. The law banning cyclists would be procedurally fair if, for example, passed by majority rule but not if imposed by a dictator. A dictator could be prospectively fair, where this means tending to produce substantively fair outcomes, so we still need a notion of intrinsic procedural fairness. This could mean simply not cheating, whatever the rules are, but that seems inadequate since the rules may be unfair – e.g. the rule that only men can vote could be impartially applied. Estlund therefore defines intrinsic procedural fairness as “the intrinsic nonretrospective nonprospective fairness of the procedure whether or not it is properly run” (p.70), which, I have to admit, isn’t the most transparent definition.
Estlund’s next claim strikes me as contentious. He claims there is a priority of substance to procedure, so if it was common knowledge that everyone agreed on the correct decision there would be no objection to simply doing it, so concerns about procedural fairness enter only where there is disagreement or no procedure independent standard. I do not find this obvious. Suppose all agree on policy X over policy Y, I may still object to the fact that a dictator imposes X on us in a way that gives my preferences no efficacy. While substance may be more important than procedure, it’s not clear that it’s lexically more important in the way Estlund seems to assume. In any case, Estlund assumes procedural solutions are simply a result of retreat from disagreement. If we can’t agree on the substance, we may be able to agree on a procedure to resolve the disagreement. One possibility would be to leave the decision to experts (as I suppose we do in certain cases, such as healthcare decisions), but where there is disagreement even about who is expert we must retreat further, until we reach fair procedures.
Many writers seem to assume that this retreat to procedures can justify democracy, but Estlund’s strategy is to argue that fairness alone gives us no reason to favour democracy. (This is in keeping with his remark from ‘Beyond Fairness and Deliberation’, p.176: “while democratic procedures may indeed be fair, the epitome of fairness among people who have different preferences over two alternatives is to flip a coin”). To show this, Estlund distinguishes between two properties commonly attributed to a fair collective decision procedure should i) promote parties’ ends (aggregativity) and ii) treat all equally (anonymity). His argument that a full retreat from substantive matters must abandon the first, leaving only the second.
A procedure is aggregative iff some change in individual inputs (choices) could have produced a different outcome. This is a responsiveness or aim-sensitivity requirement and majority rule is aggregative, while a completely random device is not. Note that any form of responsiveness, even negative responsiveness, suffices for aggregativity (p.74). Here Estlund introduces his critique of social choice theory. Social choice theory evaluates rules of aggregation, not actual procedures, and these standards are really substantive standards applied to outcomes of possible temporal procedures. The mere fact that an outcome happens to conform to a rule aggregating votes does not capture retrospective fairness if the votes were not causally retrospective. This seems right to me, a dictator could impose a decision that happens to conform to the wishes of the people, but it wouldn’t be democratic. Estlund points out that if I bet my watch on the outcome of a coin flip which, as it happens I lose, but you would take my watch anyway without bothering to know this, the fact that your action conforms to an abstract rule doesn’t justify it. He goes on to argue that rule by the people is not the same as rule in accordance with their views and that heeding votes is a matter of doing as the people say, not merely as they want. This gives us reason to respect what people actually say or vote for, rather than simply inserting electrodes into their brains to track their preferences directly.
The second property of decision procedures that Estlund discusses is anonymity. A rule is anonymous iff no difference is made to the collective ordering if the identity of the owner of the preference is changed. Full anonymity consists in outcomes being oblivious to any features of individuals, which includes their preferences and is satisfied by a completely random choice. Majority rule may not be wrong, all things considered, to attend to people’s choices, but it is no more fair than attending to their race. Estlund claims that only full anonymity refuses to import potentially controversial non-procedural values. Majority rule is no more fair than selecting a random vote or going all the way to flipping a coin, so it cannot be defended on wholly procedural grounds (p.82). Sensitivity to voter preferences incorporates the procedure-independent value that outcomes should reflect what is preferred by more people. Procedural fairness alone, therefore, cannot give us reason to prefer democracy to random decisions. What’s more, if we’re inclined to prefer democracy to random decisions, as I assume most are, we cannot remain – as Estlund puts it – ‘fully virginal’. Once we begin to incorporate procedure independent epistemic values, to favour voting over coin-tossing, then we leave behind the supposedly minimal justification of fair proceduralism and have no reason not to be more promiscuous and move all the way to epistemic proceduralism. This, as Estlund points out, shifts the debate to which procedure independent (substantive) values should be incorporated or how far we ought to retreat. Epistemic proceduralism makes only a partial retreat, blocking invidious comparisons, whereas fair proceduralism ought to be satisfied with tossing a coin, which is supposed to be a reductio ad absudum.
Personally, I found this chapter the most interesting so far, because it’s closest to engaging with the questions that I’m occupied with. I’m not sure my summary above can do full justice to the discussion, which contained many interesting points; nonetheless I have a number of questions and comments to start discussion.
My main puzzle with this chapter could be broadly summed up by saying ‘what’s going on with this coin-tossing comparison?’ but I’ll try to offer some more developed thoughts. Estlund claims that procedural fairness itself should be indifferent between tossing a coin between alternative policies and the (assumed) fairness of majority rule. Now I think that tossing a coin does satisfy a certain conception of fairness, it gives everyone equal chances of satisfaction. The problem with it, of course, is that it isn’t democratic (as I’m sure all will agree) because it ignores people’s preferences. This shows democracy can’t be reduced to political equality, but I thought that would be reasonably obvious. Democracy isn’t achieved by a group of equal oligarchs, so must surely include something about the franchise. Dahl defines democracy as political equality plus citizen sovereignty and this is what is wrong with tossing a coin – it may indeed give all citizens equal power, but that’s no power.
It seems to me that those who defend democracy on grounds of procedural fairness could accept that tossing a coin also satisfies some form of procedural fairness. They may, however, deny that it is fair about the appropriate thing. They may say that democracy is not about equal satisfaction but the exercise of agency and an equal claim to influence decisions. This, of course, would be to stress what Estlund calls aggregativity, which he claims is a non-procedural value. I’m not sure who exactly Estlund is addressing with these arguments, but perhaps those focused on fairness are simply concerned with defining, rather than justifying democracy (which may leave open Estlund’s epistemic approach as the only justified cases of democracy). As such, they could plausibly argue that a majority vote is a democratic fair procedure while coin tossing is a non-democratic fair procedure. Procedural fairness may give no reason to prefer either, but an independent justification of democracy need not obviously appeal to substance, at least in the sense of the rightness of outcomes. It seems one might prefer democratic procedures because, even if they don’t result in better decisions, they have some educative effect on citizens or stimulate participation or deliberation. (Such arguments seem to be offered by J. S. Mill, Carole Pateman and Richard Vernon).
2. Majority Rule
I remarked earlier that it seems slightly strange that Estlund is out to defend democracy without saying much more about what it is, and I think it’s that concern that partly motivates my previous point about coin-tossing. Here, however, it seems Estlund has some implicit assumptions about democracy as being – or, at least, involving – majority rule. He does, however, mention in passing the possibility of selecting a random vote (p.82). The earlier ‘Beyond Fairness and Deliberation’ article gave a much more prominent place to such a proposal, which Estlund there called ‘Queen for a Day’. Now, if democracy is defined in terms of each vote having an equal chance of being decisive, then such a proposal would seemingly qualify as democratic. As Estlund concludes after his earlier discussion, “One begins to see how much like voting Queen for a Day is, or could be. I know of no strong moral argument against it as compared with ordinary voting. Insofar as it is distasteful, bear in mind that none of the approaches to democratic legitimacy canvassed in this essay has any reason to reject it. It is fair, and it can take place after individual views are shaped by public deliberation” (p.193).
Now, I’ve been working on such an idea, so I’m curious why it’s so much less prominent in Estlund’s book. I’d certainly be inclined to say it’s democratic (though not necessarily the only or even best form of democracy), in that it is a form of citizen sovereignty that treats each equally. Estlund might deny that it fits the description of ‘deciding together’ in some stronger sense, but it doesn’t seem this is what he wants to say given his passing remarks on page 82 – certainly it treats everyone equally and makes outcomes responsive to citizen preferences (unlike the simple lottery). Maybe the solution then is to admit it as democratic but to prefer majority rule on epistemic grounds. Are there reasons to suppose majority rule is epistemically better, putting aside arguments such as Condorcet’s Jury Theorem (which Estlund later rejects)?
It seems to me that the main reason for preferring a randomly selected vote to majority rule is a fairness-based one in cases where you have permanently fixed majorities and minorities. (This is why I raised Lani Guinier’s concerns before). Is the reason it gets less play here simply because Estlund has diminished the significance of fairness in his theory? Before, he held “Democratic legitimacy requires that the procedure is procedurally fair and can be held, in terms acceptable to all reasonable citizens, to be epistemically the best among those that are better than random” (‘Beyond Fairness…’, p.174). Now he says, as quoted above, epistemic proceduralism “gives little or no role to procedural fairness” (p.66). Does this mean that majority rule can be accepted as epistemically better than a ‘queen for the day’ even if majority rule is seen to be less fair?
Maybe it’s unfair to ask David to answer all of these questions on the evolution of his thought, especially as it strays from the brief of discussing his new book and current views – so it’s certainly up to him what he wants to take up in replies. I’d be really interested to know what explains certain prominent shifts, however, because it may help understand the present argument.
I think I’ll leave it there, as those are both potentially quite big issues (partly in that both go beyond the present chapter in asking questions about the nature of democracy). There are a number of more specific questions I could ask about the particular arguments here, but I think I’ll let others have a go first.