As usual, I’d like to offer some comments in response to points and questions raised in this week’s comments following Ben’s terrific summary of my Chapter 4. Sorry again for the length, but I’ve tried to briefly address most of the points that have come up.
First on Ben’s comments: Ben grants that a random choice procedure is procedurally fair, but denies that it is democratic. I agree that obviously it isn’t democratic. But that is not yet any argument against it, because it may be that the decision procedure needs only to be procedurally fair. So any attempt to justify democracy solely on the ground that it is procedurally fair seems forced to say that a random (and non-democratic) procedure is equally justified, being equally fair. Ben argues that democracy includes some element of what I call aggregativity. I agree. He says that the theorist who wants to ground democracy in fairness might just mean that what’s required is a procedurally fair treatment of everyone’s votes or preferences. I agree. My argument is that this shows that they appeal to something more than mere procedural fairness. They add a principle requiring a link between the output and individual inputs, a principle that is not part of the concept of procedural fairness (as shown by the example of a random choice procedure). So I think there’s nothing in that first comment of Ben’s that we disagree about, but I hope this clarifies what I’m arguing for.
Ben adds a brief remark about how some theorists defend democracy on educative grounds. I take it that even these theorists require at least some aggregativity in the procedure, some even going in a more epistemic direction, such as Mill. So they pose no challenge to my arguments in this chapter. Paul also mentions the educative approach in comment 4, so I might as well say just a little bit about it here. (I can’t recall whether anything along these lines made it into the book.) I wouldn’t deny that democracy can have some beneficial effects on the education and development of individuals participants, and this must count in its favor to some extent. But I agree with Elster (in Sour Grapes) that the educative benefits seem bound to piggy-back on some self-understanding that involves some other account of the value of democracy, so it merely postpones the questions about proceduralism, substance, etc. It is difficult to believe that democratic voters would build the lively curiosity and public spirit emphasized by the educative approach if they thought the only value of democracy was this cultivation itself. If, on the other hand, a theory tried to avoid this move and stick with the educative effects themselves, I would suggest comparing this with a merely educative justification for, say, an institution of faith-healing: “No, there’s no reason to think it does any good for the patient, but the healers become the most energetic and interesting people!”
Ben’s second comment is mainly a question about the development of my thinking since my article, “Beyond Fairness and Deliberation.” In that article I granted that political procedures must be procedurally fair, but argued that they must also include an epistemic dimension. I no longer think that there is any role for a principle requiring procedural fairness, and I make to appeal to that value in my argument. I grant that democratic procedures often would count as procedurally fair in certain respects, but I take this to be of little importance. A random choice of outcomes would also be procedurally fair, and yet none of us think that would give much legitimacy to political decisions. So it seems equally clear that it adds little legitimacy when it is present along with other legitimacy-supporting considerations such as the ones I appeal to in epistemic proceduralism. I would even go slightly further, rejecting any principle requiring procedural fairness as such. The reason is that I believe that if there is a procedure which is the epistemically best available within public reason (beyond qualified disagreement), but was not fair, that would be no objection to it at all. It would not be unfair, a pro tanto disvalue, just non-fair, which is nothing against it. And, in fact, I think it is not at all clear that a comparison between the procedural power I have over law and policy, and the procedural power a senator has, can be shown to be equal, which procedural fairness would seem to require. I conclude that procedural fairness is probably not required. (I briefly mention this point at 221-22.)
In comment 2, I offer a response to Bill’s comments in 1, so I won’t revisit that here.
Jonathan (in comment 3) argues as follows:
I think there are two distinct questions we can ask about a decision procedure. One is whether there is an independently correct answer to the question being decided by the procedure. If we use a decision procedure to answer the question – should abortion be legal? – one issue is whether there is an independently correct answer about the legality of abortion. Let’s call this the substantive question. The second question is, by what standards do we evaluate the decision procedure? For example, do we evaluate the decision procedure on its capacity to promote artistic beauty in the world? Let’s call this the procedural question.
This is a fine distinction as far as it goes. The problem with it for my purposes is that it suppresses the question I want to address, which is whether there are other ways to import non-procedural values than by attending to the correct answer to some question. I am not arguing that majority rule smuggles in epistemic concerns, but only that it imports procedure-independent standards of good outcomes. As I argue, “…appeals to fairness strike us as so attractive precisely because they purport to be fully neutral, not carrying any conception of good ends other than the procedure itself. But only full anonymity, which often has little moral value, actually lives up to that.” (81) The term “procedural” isn’t so important to me, but a procedure that insists on sensitivity to the participants’ choices in addition to treating all participants exactly symmetrically (as a random choice procedure would) is steering the outcome in a way the random procedure is not. Once it is granted that any plausible account of political procedures imports values on the basis of which to steer the outcome, then none of them can claim to be completely “hands-off” with respect to steering the outcomes in accordance with certain values. Once that is cleared up, we can argue about which sorts of values are available for this purpose. Having said this, I readily grant that I want to defend appealing to more substance than fairness defenses of majority rule do. That’s because I not only want the outcome steered to reflect the differences between voters (which is already a value that goes beyond procedural fairness), but also (or in order), in a certain way, to steer it toward an independently correct answer to the question put to the voters. Whether my approach is justified depends on the outcome of a debate between this use of substance and fair-proceduralism’s use of a different substantive standard. That’s not a debate between appealing to substantive standards and not appealing to substantive standards.
Paul, in comment 4, argues against my claim that there is a kind of primacy of substance over procedure, so that appeals to procedural values are only warranted by the need (for various reasons) to retreats from substance. He considers the example of a jury trial of a person who is known by everyone to be guilty and to deserve jail, with all this being common knowledge (if I understand Paul’s example correctly). The crucial thing, for Paul’s purposes, is to stipulate that a jury trial, in this case, has no advantages with respect to getting the substantively correct decision. If it did, I would explain it as a very partial retreat: from shared certainty about the right answer, to agreement about a procedure likely to get the right answer. The retreat could stop here, and not go all the way to merely agreement on a procedure that is fair between participants.
Here we need to pause and clarify some different uses of the term “fair procedure.” We often talk about a fair trial, but we are not referring to the kind of procedural fairness of the view I call “fair proceduralism.” So the language is treacherous here. The fair proceduralist view eschews any appeal to a tendency to get a right answer, and substitutes only the appeal to giving each person an equal chance of influencing the procedure in the direction they prefer. This latter approach would clearly be crazy in a criminal justice context. (I believe I make this point in the book, but I can’t find it .) Imagine the view that all the lawyers, the judge, the defendant, and the jury votes, and saying the justification for the outcome is simply that it satisfies a majority, with no reference to any tendency to acquit the innocent or convict the guilty. So that’s not what we mean by a fair trial. This latter thing really has almost nothing to do with procedural fairness in the sense we’re discussing.
This linguistic point isn’t fatal to Paul’s point. He argues that in the common knowledge case we should still have a jury trial, and for purely procedural reasons. This wouldn’t be a problem for me if I could show that the resort to procedural values depended on the unavailability of routes to the substantively best outcome. So Paul points out that the substantively correct answer is as available as can be. If I am understanding the challenge correctly, its weakness seems to be the claim that there remains some significant value in having the jury trial. (Let’s put aside the higher order reasons there be for having an institution that handles such cases by a jury trial without looking into whether the common knowledge of guilt drains such a procedure of any value. That might be warranted on pragmatic grounds that seem irrelevant to our main question.) In the common knowledge case, I can’t see any significant value in having a jury trial. For what it’s worth, actual trial systems will often acknowledge this and forgo the trial by accepting a guilty plea. Sometimes guilty pleas are not accepted, but never, so far as I know, in cases where the defendant is competent and all agree she is guilty.
So, on my analysis, the point of a jury trial is (mainly) that it is a publicly acceptable method for coming to the correct judgment in the absence of agreement about what that correct judgment is. That exhibits what I call the dynamic of retreat. (Of course, there are also other values in the picture, such as favoring the defendant, deterring illegal searches, and so on. I believe my approach can accommodate these, but I won’t pursue that here.)
In comment 5, Paul writes,
On pg. 82, it’s claimed that a coin flip is purely procedural. But on pg. 75-6, it’s claimed that a coin-flip procedure that actually insists that the outcome be a result of the coin flip (rather than merely correlated) is not purely procedural, because it too demands that the coin flip cause the outcome.
My point in that latter passage is precisely to distinguish what is sometimes called “responsiveness” in social choice theory contexts, from the very different idea of a retrospective procedural fairness. Social choice functions are not really about responsiveness in a procedural sense at all, any more than 4 is responsive to the procedure of 2+2. Much confusion has stemmed from conflating abstract aggregation functions with actual temporal procedures for casting and counting votes. I fear Paul’s subsequent discussion stems from a confusion about what I was saying, but if not I’d welcome clarification of the point.
… the argument that begins on p.78 aims to establish that procedural fairness consists in full anonymity, which requires that the procedure’s outcome be insensitive to anything about individuals, including the fact that (e.g.) we all prefer X to Y. On this conception of procedural fairness, equal insensitivity and equal sensitivity are not equally procedurally fair; only insensitivity is fair.
As he says, I anticipate this reaction at page 81: “We should not say that procedures, including majority rule, are not fair simply because they are not fully anonymous. Rather, procedures can mix fairness and other principles, remaining fair, among other things.” (81) And yet, he asks, if fairness is full anonymity, aren’t departures from anonymity departures from fairness? In a way, yes. But it might risk confusion to insist on putting it that way, because it’s so easy for all of us to slip into the unwarranted inference from “less fair” to “at least somewhat unfair.” That’s a fallacy, as I argue in my discussion of the “non/un issue.” So I prefer to say that only fully anonymous procedures are free of non-fairness elements. Other procedures needn’t be called less fair, but they are not only fair. So their extra elements, such as aggregativity in many cases, cannot be justified by appeal to the idea of procedural fairness. So I don’t say that majority rule is less fair than a random procedure, just that it includes extra elements as well that can’t be explained by fairness.
I think Andrew’s final paragraph in comment 6 might be a fine way of putting my argument while avoiding linguistic disputes about the term “fairness.” He uses the term, “equality in the procedure” instead. So I’m happy with that, but I still offer my analysis of procedural fairness as having much to be said for it. Remember, as I say at p. 80, if aggregativity were built into the idea of procedural fairness, then it would be a mistake to ever say that a random procedure is a fair procedure. That strikes me as conclusively showing that fairness does not incorporate aggregativity. Then, since a procedure can be fair without aggregativity, the case for aggregativity cannot rest on fairness.
Finally (or up to this point in the comment thread so far), Andrew takes up my argument that there is often a moral reason to do what people say rather than what they want, which would be an objection to views (like Pettit’s, perhaps) that take the latter to be the primary democratic aim. Andrew challenges my claim with the example of strategic voting. It’s certainly true that if what we want is to track preferences we are hampered by having to use votes as surrogates for preferences. But Andrew offers no reason to think that we should, if we could, track preferences rather than votes. Even outside of voting contexts we all often “vote strategically,” or direct people to act in ways that are not actually the way we want them to act. “Please, Professor Rawls, don’t spend much time on this questions I’ve sent you,” or “Come to my birthday party, but don’t bring any gifts” are not always accurate information about the speaker’s preferences. It doesn’t follow that, morally, the thing to do is to guess their preferences and do that instead. I give other examples in the book. The general idea is that in many contexts—and I don’t yet see why strategic voting wouldn’t be one of them (though I’m not committed either way)—we ought to do what the person says even when we know it does not reflect what they want. This might be so even where their misrepresenting themselves in this way is morally dubious, in case Andrew thinks strategic voting is morally dubious. For an example of this last thing, it might be wrong for me to tell you to stop helping with the dishes when I really prefer the help. But if it’s my house, you should probably stop helping, at least if I don’t give in. This doesn’t prove that we should follow votes rather than preferences even in cases of strategic voting, but nor is that a clear example where we shouldn’t.