Response to Comments on Chapter 5

The main issue that has come up in this week’s comments concerns my rejection of fair proceduralism. My argument against it was that procedural fairness can’t prefer a fair democratic procedure to a random selection of outcomes, since both are equally fair. The question arising now is whether, nevertheless, there isn’t something that can be said for fair democratic procedures favoring them over random procedure, but without bringing in any epistemic features.

One idea is that either the idea of fairness or the idea of equality incorporates a concern for more rather than less of the distributed power, as opposed to caring only for an equal distribution. I doubt that either of these concepts includes such a thing. A coin flip (which gives each person zero expected influence or power) is sometimes a perfectly fair way to decide something even if voting (which increases each person’s expected influence above zero) is available. As for equality, it is patently satisfied by a random procedure since all equally have no influence. Christiano argues that we would only care about an equal distribution of something if we also cared about having more rather than less of it. First, this doesn’t show that equality includes that second concern. We might (or might not) just have two concerns: equality of x, and more of x. Second, the concern for an equal share of procedural power looks like a counterexample to the claim that we never have the concern for equal distribution without also wanting more of the distributed thing. It seems perfectly comprehensible to be satisfied with a random procedure in some context, but to insist that if anyone is to have power or influence all should have it equally. Suppose the question is which of several designs should be chosen for the new public fountain. I might be happy to have this decided randomly. So I don’t care about having any influence. However, I would object if some were given a vote in the matter while I was not. I want equal influence but I don’t care if any of us has any. So it is not true, as a general matter, that to value an equal distribution of x entails positively valuing more x over less. So I think neither the idea of fairness nor the idea of equal distribution can favor voting over a random procedure.

If we posit not only the value of equal influence, but also the value of positive influence at the highest possible equal level, this might very well lead us to majority rule. (This might capture Jonathan’s suggestion that political power might not be merely a positional good.) But since I don’t think those two values can be found in the value of procedural fairness or in the value of distributive equality, it is hard to see how they provide any significant support for majority rule for someone who didn’t already favor it. Unlike equality or fairness themselves, influence at the highest equal level sounds, to me, too close to majority rule itself to provide any independent argument for it. We wouldn’t be saying much to the skeptic about democracy by pointing out that it meets those two criteria. They’d say, “I know. That’s what I don’t see the value of.” Such skeptics are often driven by the indifference the support for democracy often shows for the substantive quality or justice of political decisions, and they wonder what values could be so great as to be worth it. I don’t think this value-pair rises to the challenge.

Another common way of trying to explain the preference for majority rule is by appeal to the value of having outcomes satisfy as many people as possible. This is an outcome standard, incorporating what I call aggregativity in addition to procedural fairness. But the question seems to be whether this still stops short of epistemic considerations. So far, I haven’t argued that only an epistemic approach is justifiable. I have only argued that outcome standards must be brought in, framing the relevant debate as one about which standards to use and how best to meet them, and constraining this all by a qualified acceptability requirement. But let me say this much here: Suppose for the sake of argument that a quasi-utilitarian principle such as “laws ought to satisfy as many citizens as possible” could meet an appropriate qualified acceptability requirement. The next question would be how best to satisfy it. I grant that we aren’t yet into anything epistemic, although we are certainly reasoning instrumentally about procedures rather than purely procedurally. So the alternative being pressed against my epistemic approach is not much like fair proceduralism. The challenge seems to be: if laws ought to satisfy as many people as possible, couldn’t majority rule be the best way to do this, even without anyone trying to figure out the right answer? It is a kind of invisible hand argument for the instrumental value of majority rule as a means to meet the principle. So my first point is that this is closer to an epistemic approach than the discussion might have been noticing.

Still, it is not epistemic as I would use the term unless it involves voters aiming at the right answer (in this case: Which policies would satisfy the most people?). So the next question is whether this non-epistemic approach really would be instrumentally better than an epistemic one (all within public reason). An epistemic one would be where voters are expected to aim at the right answer. In general I would argue that an epistemic approach is likely to be more reliable at producing correct or good decisions as judged by whatever the appropriate independent standard is, but we could cook up an independent standard for which the non-epistemic approach of self-interested voting might plausibly do reasonably well. The standard that says that laws and policies ought to satisfy as many people as possible would be close. It cares about “satisfying” people, which may or may not coincide with what is actually best for them, so getting what they vote for might satisfy them in the intended sense. And the principle also has no concern for a trampled minority, and so there is no danger of “tyranny of the majority” according to the principle. If trampling a minority is what most people want this principle says it is just or best. With these dubious elements self-interested voting under majority rule would appear to be likely to do reasonably well. There are still worries even about that, though. Do minors count in the class of people whose satisfaction is counted by the principle? If so, we’d want some story about how the self-interested voting of the rest is likely to promote the interests of these non-voters in the way the principle requires. Mainly, though, the principle itself is very implausible for the two reasons I mentioned. So even if majority rule tends to produce laws that satisfy the most people, that’s little reason to think it produces laws that are good or just.

A more plausible outcome principle would include some inviolability of persons that protects them (morally speaking) from the tyranny of the numbers. But then a process of majority rule in which each merely looks out for number one is bound to do very poorly. The main place where I discuss this in Chapter 13, “Rejecting the Democracy/Contractualism Analogy.” The relevant point here is that if each looks out for herself, then there might well be small and great humanitarian disasters (such as famines) which would be strongly disfavored by any plausible outcome principle. The plight of small minorities is only likely to be duly looked out for if decision-makers take each other’s interests into account in the right way. But that means voters will be addressing the outcome standard itself, and then the procedure is genuinely epistemic.

I’d like to briefly address Andrew’s question about the argument of Josh Cohen’s that I criticize. Cohen hopes to do without any appeal to substantive evaluation of outcomes except where this can be gotten from the appeal to democracy itself. But he counts outcomes as legitimate (and so otherwise wrong in a clear sense) only if they meet a certain qualified acceptability requirement. I say this is nothing but an outcome standard. Cohen says it is itself a democratic requirement, and he (like Habermas) is happy to evaluate outcomes with respect to how well they establish or protect democracy. It is only democracy-independent values that he hopes to do without. But I argue that his acceptability requirement cannot be regarded as democratic since it mentions nothing about people actually authorizing laws and policies.

Andrew suggests that laws that don’t satisfy the qualified acceptability requirement could be held to exclude some people from full citizenship, and wonders if that isn’t enough of a democratic value for Cohen’s purposes. I would say that it isn’t. Equal citizenship can refer to lots of different things, but it is not always referring to democratic values. The laws in most states in the U.S. might be held to deprive homosexuals of full citizenship, in the sense that they are treated as “second-class.” You could call that a breach of democracy if you wanted. But we want to make sure that not just any breach could be charged against democracy, otherwise Cohen’s project of trying to appeal only to democratic values loses all meaning. Should we count every aspect of social inequality as a mark against democracy? The question I want to consider is whether we can give a good account of the legitimacy and authority of arrangements in which laws and policies are authorized by the people subject to them without appealing to the evaluation of those laws and policies in terms of other values. I say we can’t, and I understand Cohen to be arguing that we can. But since the qualified acceptability requirement is not itself about the value of such actual authorization I argue that his argument fails.

If Cohen were to say that his conception of democracy itself is much broader than this, then it would turn out that we are not asking the same question. For example, if “anti-caste” is counted as a democratic value entirely apart from any role it might have in questions about who actually authorizes the laws, then we aren’t asking the same question. This would divorce the idea of democracy quite completely from the idea of popular rule, and so what gets defended in the account wouldn’t actually be popular rule, but “democracy” in some very different sense having something to do with castes. The skeptics about popular rule will not have been answered.

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5 Responses to Response to Comments on Chapter 5

  1. Hi David,

    Thanks, once again, for the detailed reply. The only point that I find myself uncertain about is your claim that ‘influence at the highest equal level sounds, to me, too close to majority rule itself to provide any independent argument for it’.

    Consider the principle: each primary good ought to be distributed in a way that is to the greatest benefit of the least-advantaged. This principle is one that free and equal parties situated under fair conditions would accept (let’s suppose). I think that provides the independent argument for the principle, an argument that has nothing to do with majority rule.

    If we decide that political power is a primary good, then we have a prima facie case for majority rule since, absent further information, this looks to be the system that maximizes the political power of the least-advantaged. But if we add new facts, the principle might justify something other than majority rule. Suppose we have a permanent minority who would always lose out under a majority rule system. Our principle might, in this case, require something like a super-majority or even offer a veto to the minority (this might be a decision taken at the constitutional stage, once the veil has been lifted a little). Given the right facts, the principle will thus justify majority rule, but given other facts, it will justify a different procedure. So the principle being invoked is justified by an original position-type argument, and it does not necessarily justify majority rule, so I don’t see why it is too close to majority rule to provide an independent argument.

  2. Jonathan: I see a big difference between supporting majority on the basis of the value of equality, and supporting it on the basis of an argument that it would be chosen from an appropriate original position. One way to think of Rawls’s method is to find a deeper level from which to adjudicate disputes between egalitarians and others. So what I say about the equality defense is not meant to say anything (yet) against an original position argument.

    Original positions can be constructed in many different ways, and so there’s no general answer to what would be accepted. Without committing myself to Rawls’s own seminal version, it’s valuable to ask what implications it has for majority rule. As I read Rawls, he argues that the two principles would be selected in the original position, but that institutional arrangements such as majority rule are to be decided at a later stage in the theory. At the constitutional stage, where the veil of ignorance is partially “lifted,” the parties choose institutions with an eye to which ones would best promote justice according to the two principles. Rawls argues that there is a strong case for majoritarian elements on this epistemic basis, although he seems to endorse many important limits. He says, at p. 120 (revised edition), only that “…the majority principle must as a practical necessity be relied upon to some degree.”. (He does conceive of it as epistemic, not just instrumental, since he seems to have in mind people addressing a common topic.)

    So, in the Rawlsian version of an original position, democratic decision procedures are not determined by treating political power as a primary good to be distributed in one way or another. Whether or not I have Rawls’s view right here, I think the impact of different power distributions on the justice of the resulting decisions swamps the issue of the value to an individual of having that tiny share of political power. Rawls seems to take a similar position in relegation of the question of majority rule to the constitutional stage.

  3. Ben Saunders says:

    I’m not sure I see the distinction between arguing from equality and the original position, since I interpret the second as a heuristic device to show what (free and) equal people would agree to. Also, I think it’s wrong to say that Rawls ‘relegates’ the distribution of political power to the constitutional convention stage because it’s unimportant. Rather, I take it that parties to the original position could agree to equal political power in the abstract, but the concrete institutional implementation of such requires some knowledge of society. Majoritarian institutions may be appropriate in a society marked by cross-cutting cleavages, but not one with a single dominant majority/minority divide.

    Otherwise, I agree with David – Rawls does assume majority rule for epistemic (and practical) reasons, although it’s presumably qualified by both a Supreme Court and the prospect of civil disobedience. I don’t really think it’s worth getting further into the details of his argument here though.

  4. Ben, what I meant to distinguish was arguing from the value of distributive equality vs. arguing from an original position in which such distributions would be chosen. And I certainly wouldn’t say that the distribution of political power is unimportant in Rawls, but only that it is subordinate to several other things, including promoting substantive justice according to the two principles. Those are just clarifications. I don’t think we’re disagreeing about very much.

  5. Just to clarify – the position I sketched in my first comment was not intended as a portrayal of Rawls’s own position. I was just borrowing a few Rawlsian ideas as a way of trying to present a plausible, non-epistemic argument for majority rule, one that had not been addressed by David in chapters 4 or 5.

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