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.
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.
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.