Estlund Reading Group Chapter 8

The argument of this chapter is an analogy between the authority of democracy and the authority of a jury trial system. A jury system that possesses certain qualified epistemic features (i.e. epistemic benefits that no qualified point of view could reject) also possesses authority. This authority is “original” since it does not depend on prior authorisation through consent or some political procedure. Analogously, a democratic system that possesses similar qualified epistemic features, also possesses original authority. Most of the chapter is spent developing the case for the authority of a jury system, so I will focus on that. I imagine that some may be more interested in the strength of the analogy between democracy and the jury system, but I think there is a lot to be done looking at the analogue itself.

Synopsis

The central example is Juristic Prejuria. Anarchic Prejuria is a society with laws and assigned penalties for breaking those laws. Nevertheless, it lacks an institutional mechanism to determine guilt and mete out punishment. Epistocratic Prejuria adds a procedure in which the church elders make and enforce determinations of guilt. Juristic Prejuria differs from Epistocratic Prejuria in that, instead of the church elders system, a private group, Citizens for Public Justice, has established a jury system in which random panels of six citizens are chosen to determine guilt. The Juristic system is better at promoting justice than both a random procedure and the Anarchic system. Moreover, it is superior to the Epistocratic system, not necessarily on epistemic grounds per se, but rather insofar as there is no qualified objection to its epistemic benefits.

The two questions of the chapter are 1. whether the citizens of Juristic Prejuria have a duty to abide by the decisions of the juries, and 2. if so, just what the moral basis for this may be. Estlund’s answers are (1) yes, they do, and (2), the moral basis for the juries’ authority is the citizens’ duty to consent to obey the jury system.

(1) The case for (1) turns on the antivigilante principle:

AV: When there is a system that serves the purposes of judgment and punishment without private punishment, then private punishment is morally wrong.

Since Juristic Prejuria is an improvement over the private punishment of Anarchic Prejuria, citizens ought to prefer it and act in accordance with the decisions of its juries. But does this mean that juries have the moral power to forbid action (in this case, private punishment), or is it simply that such punishment is wrong? Estlund argues that the juries do have the moral power to forbid action because this prohibition is part of the essential purpose of that system, and not simply a moral side-effect.

(2) The account of the moral basis of the authority of the jury system is predicated on the claim that citizens have a duty to agree to obey the decisions of the juries. With the theory of normative consent developed in Chapter 7, this will generate a duty to obey the decisions of the juries. Thus, the question is why there should be a duty to agree to obey. As I understand it, the argument for this claim proceeds roughly as follows:

1. Citizens have a humanitarian duty to (do their fair share to) establish and maintain an adequate (local) system of justice.
2. There is, in addition, great value in citizens committing themselves to obey the decisions of an adequate system of justice.
3. The jury system in Juristic Prejuria is an adequate system of justice. Thus:
4. Citizens have a duty to commit themselves to obeying the decisions of the jury system.

In discussion of premise 1, Estlund argues that the humanitarian duty on the part of citizens does not exceed doing one’s fair share. Thus, it is unlike a duty to rescue. Moreover, we can avoid Simmons’s particularity problem by noting that a system of local criminal justice districts is an effective way to promote the global goal of criminal justice. Thus, we’re able to explain why we should be worried about this criminal justice system here, rather than the decisions of the criminal justice system on the other side of the world.

Premise 2 is the pivotal premise, because it brings the will of the citizen into play. According to the Quasi-Voluntarist constraint, an obligation to obey a decision must be connected in some way to the will of a person. The idea is that we don’t just want certain tasks to be accomplished. We also wish people to be morally committed to the accomplishment of those tasks. Estlund uses three examples: i. you promise to come to dinner, ii. Danielle promises to pay back her college loan to her parents, and iii. doctors swear the Hippocratic Oath. In all these cases, there is some independent moral value in the fact of the moral commitment itself, and not just in the three facts that you do come to dinner, the loan is paid back, and that the health of patients is promoted. Analogously, there is value in citizens morally committing themselves to doing their fair share in the local fulfilment of a global humanitarian duty. Thus, they should commit themselves to obey jury decisions, and not privately punish those who have been acquitted by a jury.

Questions

1. It’s not obvious to me that the juries in Juristic Prejuria have original authority. They’ve been established by the Citizens for Public Justice, so what if the Popular Front for Public Justice and the Public Justice Citizens League also happen to establish (equally competent) competing jury systems? These will inevitably have juries that reach different decisions about the same cases, so which decisions are we bound to obey? One could argue that the CPJ system has authority as long as it is an effective monopoly on judicial decision-making, but a. it’s not obvious that anything the CPJ has done could – without a lot more detail — prohibit us from setting up our own jury system (what makes them so special that only they get to do this?), and b. if a jury system did have authority over us, wouldn’t we actually be prohibited from setting up a new system to see if the results would be any different? Otherwise it seems a bit weak: “Don’t punish this person! … (Unless, that is, some other jury tells you to).” I think this is connected to a concern that the CPJ system doesn’t look like an alternative to private punishment at all. It may be an alternative to individual vigilante justice, but to get a properly public system, I think we need some explanation of why that system ought to have a just monopoly, and this may involve having to appeal to authorisation through a political process or perhaps some longstanding social convention.

2. With respect to side-effects, it strikes me that when the son of the dictator orders the minister to leave the palace, the minister’s obligation to leave the palace is not a side-effect. His leaving the palace is part of the essential purpose of the child’s issuing the command. Nevertheless, the child does not have authority over the minister, since the minister’s obligation is grounded in something other than the order, i.e. in the likely consequences of non-compliance. Similarly, I don’t think it follows that juries have authority to prohibit action just because such a prohibition a. may arise, and b. is part of the essential purpose of their decisions. One could argue that if there is a duty to abide by the decisions of the juries in Juristic Prejuria, this has to do with the likely beneficial consequences of acting as if such juries had authority. Their essential purposes are arguably no more conclusive than those of the dictator’s child.

3. The humanitarian story about why we need to establish a criminal justice system, and why we only have a duty to do our fair share in supporting it locally, strikes me as very credible. The districting idea seems to be exactly the way to respond to the particularity problem. Nevertheless, the worry is that it is too good a story, because there may be enough in it to support the authority of the criminal justice system without too much addition. Why, for instance, couldn’t there be a natural duty to obey the decisions of the just institutions we have a duty to support and which generally require obedience to their decisions to be effective? The QV constraint is not a premise that can be used against non-voluntarist accounts of political obligation (or in this case juridical obligation), since it’s not a constraint accepted by them. Instead, I understand it to be a way to burst the bubble of philosophical anarchists: even if the QV constraint is true, the normative consent discussion is enough to establish political authority without actual consent.

4. The discussion of the general commitment task, and of the great value of promises, did not seem to me to be an adequate response to scepticism about the duty to obey the decisions of the juries. None of the examples of promises that Estlund raises are examples of promises to obey, and it’s a promise to obey that is in question. I’m sure there are examples of cases where the promise to obey has value, but I don’t think we’ve seen an argument that this value is sufficient to establish a duty to promise to obey where there is not already an actual duty to obey. In all the cases that Estlund raises, the duty to promise to X, if there is one, is derivative of a prior duty to X. The doctor has a duty not to harm, thus she has a duty to promise not to harm. Danielle has a duty to pay back her parents, thus she has a duty to promise to do that. If you have a duty to come to my place for dinner, then you may also have a duty to promise to do that, but I don’t think you have the latter unless you have the former. But it’s this derivative structure of: duty to X -> duty to promise to X, that the normative consent theory of political obligation wants to avoid. In any case, why is the value of a moral commitment not adequately manifested by people’s promising to do their fair share in the maintenance of their local adequate criminal justice system, rather than promising to obey as such? We need to get from promising to obedience here, but there’s a lacuna here that needs to be filled in such a way that does not already generate a duty to obey from a duty to do one’s fair share in maintaining the local system.

5. On a related point, I did not find the discussion on p. 155 of why the duty to agree to obey may be easier to establish than the duty to obey persuasive. (I think this was the point of the discussion, but since I may very well just be confused, I’ll set out my problem to see if others can set me straight.) The idea, I take it, is that duties to do X can be defeated by the excessive costs of X-ing. But in the case of the duty to agree to obey, “the relevant costs are not those of obedience but those of accepting authority, since that is the act we are, in the first instance, trying to show is obligatory” (155). I know the foil here is a duty to obey based directly on a duty to aid, but surely if the duty to promise to obey generates a duty to obey, then the costs of the latter have to be counted somewhere, either by counting against the original duty to promise, or the implication between the two duties.

There were some other questions, particularly related to Chapter 7’s discussion of normative consent, but I’m still thinking about David’s response to David, so I’ll leave it at that for now.

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About Simon Cabulea May

Simon Cabulea May is Assistant Professor of Philosophy at Florida State University. He received his PhD from Stanford University. His present research project generally concerns conflicts of moral convictions in public deliberation.
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4 Responses to Estlund Reading Group Chapter 8

  1. Hi Simon,

    Thanks for the great post. I share some of your reservations about the way David uses the device of normative consent to distinguish his position from the position of natural duty theorists like Wellman.

    Suppose I have a duty to rescue people from dire poverty when I can do so at reasonable cost to myself. If the global/local solution to the particularity problem is right (and I find this solution very plausible), and if there is some local group, Poverty Relief (PR) whom I have good reason to believe are the most efficiently organized to alleviate poverty in my area, then it seems to me I have a duty to obey PR’s commands, at least when they don’t ask for more than what is reasonable. This duty to obey PR is derived from my more general natural duty to alleviate dire poverty. Why introduce the device of normative consent into this story, and say that I have a distinct duty to promise to obey PR? I couldn’t quite work out what this extra move delivers that the natural duty approach on its own doesn’t deliver.

    David suggests (p. 151) that the global/local solution only explains why we have a duty to contribute to some global problem, but that it doesn’t explain why we can have a duty to obey any particular authority. But I’m not sure why the global/local model can’t also justify particular relations of authority. If the global/local model is sound, then ‘the particularity of each person’s duties…[stem] from the fact that that the best solution is a districted one’ (p. 150). One plausible way to interpret this idea is to say that our general duty to alleviate dire poverty, for example, can be more precisely specified as a duty to alleviate dire poverty in the best or most efficient manner possible. It’s plausible to suppose that an agency like the state (or like the juries in Prejuria) will be unable to fulfil their urgent functions unless the majority of people within a given territory obey its commands. We can further assume that a state which has the obedience of most people within a territory can much more efficiently fulfil the duty to aid than if everyone tried to act independently. If our duty to aid requires that we adopt the means that will best or most efficiently fulfil the duty, then we have a duty to obey the state rather than act on our own (Wellman and Dan McDermott both make arguments along these lines). This explains the duty to obey the law without recourse to the device of normative consent. It can simply be derived from our more general natural duties to aid and rescue others in the most efficient manner possible (consistent with other normative constraints). The appeal to normative consent and the slightly puzzling idea that there can be a duty to promise to obey that is distinct from the duty to obey seem unnecessary, or at least, I’m not clear on what they add to the basic natural duty account.

  2. It might have been helpful for me to distinguish four claims:

    F: The duty to do one’s fair share in upholding a local adequate criminal justice system.
    FP: The duty to promise to do one’s fair share in upholding a local adequate criminal justice system.

    O: The duty to obey the decisions of a local adequate criminal justice system.
    OP: The duty to promise to obey the decisions of a local adequate criminal justice system.

    The goal is to arrive at O. The global/local humanitarian story gets us to F. The trick is how to get from F to O. David wants to route us through OP, but my objection in 4. is that the value of promising only seems to support a duty to promise to X when there is a prior duty to X. So the discussion of the value of promising in this context would only move us from F to FP.

    Thus, we still have a gap between (F & FP) and (O & OP) that has not been bridged yet. So why is it any easier to go from F to FP to OP to O, than to go directly from F to O?

    I tend to agree that moving from F to O is not a small step. I think I would be inclined to agree that I have a duty to at least help maintain the jury system in Juristic Prejuria, since it’s better than having no system at all, but I think I would want to know more about the system to agree that I had a duty to obey it, since this seems to me to exclude just setting up an equally good competing jury system. (Perhaps that is because I tend to think of authority in terms of the right to obedience, where such right would exclude competing authority, at least with respect to the same question.)

    Nevertheless, I do think we can bridge the gap between F and O with an account of why obedience is a necessary part of upholding a system*, and why this particular decision-making body is entitled to make the kinds of decisions it does. Neither of these steps, I don’t think, has to go through the will, or morally laundered will, of the person.

    *Jonathan, I don’t think you’re going to get this step in your Poverty Relief case. Surely the duty would be just to support them and not necessarily obey them about how to support them? They may have an expertise in how to relieve poverty, but I don’t think that gives them an authority over us. I don’t see why obedience would be an essential part of the way in which we fulfil our duties.

  3. Simon,

    I think the distinction between the four claims is very helpful, so thanks for that. I do think that my Poverty Relief example can generate a duty to obey, and not merely a duty to do my fair share in supporting. First, I should say that I was imaging the Poverty Relief (PR) organization to have sprung up in an otherwise anarchic situation, like David’s Prejuria example. Second, I don’t think it’s merely PR’s expertise in poverty relief that grounds my duty to obey them – it’s this fact combined with two others: (i) the assumed duty I am under to poor people to alleviate their poverty, and (ii) the assumption that PR can most effectively alleviate poverty (without violating other normative rules) if everyone in my area obeys their directives. These three facts, I claim, can generate at least a prima facie duty for me to obey PR’s directives.

    Suppose I am under duty X to person P. Other things being equal, I must do my best to fulfil X. I cannot knowingly choose means which are unlikely to be successful when there are other, better options available at roughly similar cost to me. Suppose you and I come upon the scene of an accident – you are a doctor and I am have no medical knowledge. Suppose also that the victims of the accident have a right that I do my best to aid them, meaning I am under a duty to do so. The victims best chance for survival is if I (and other passers-by) do exactly what you say. Under these circumstances I cannot choose any method I like of trying to help the accident victims. I cannot decide to ignore your directives and try my hand at being a doctor myself. The duty I have to the accident victims means I must do my best to help them, and in this context doing my best requires that I obey your commands (within reason). Anything else would be failing to do what others have a right that I do.

    The circumstances in my poverty relief example are meant to be relevantly similar. Only if we do what PR commands can we effectively fulfil the duty we owe to the poor. To try and do otherwise would be to failing to do what the poor have a right that we do.

  4. At this point, I’m posting a response to some of the points raised above.

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