Remarks on Comments on Chapter 13

Thanks again to Jonathan for the very useful summary and comments. I’ll consider his three questions in order.

First, Jonathan raises a small exegetical question. Does Rawls suggest the kind of democracy/contractualism analogy of the kind I’m discussing? Nothing in my argument depends on this, but it’s still interesting. Here’s the passage I use in support of my claim that he uses the analogy:

The guarantee of fair value for political liberties is included in the first principle of justice because it is essential in order to establish just legislation and also to make sure that the fair political process specified by the constitution is open to everyone on a basis of rough equality. The idea is to incorporate into the basic structure of society an effective political procedure which mirrors in that structure the fair representation of persons achieved by the original position.

Jonathan says that Rawls could just mean that the original position is fair and so by mirroring it in actual political procedures would also be fair, and good in that way. This, Jonathan says, wouldn’t be the same as saying that since the choices in the hypothetical original position constitute justice, choices in a structurally similar real procedure would tend to be similar, thus tracking justice. So on Jonathan’s possible reading the fairness of the original position would be a kind of fairness that has nothing to do with the subsequent claim that choices made in that kind of fair procedure count as principles of justice for a social basic structure. That way this same kind of fairness could be thought of as a value in real institutions quite apart from anything about what kinds of substantive decisions they would make.

If, instead, the original position’s particular brand of fairness was devised in order to be such that the principles chosen there could be counted as principles of social justice, then, when Rawls seeks to mirror that kind of fairness in real institutions this would evidently be because that kind of fairness has that justice-bestowing quality. There are lots of kinds of fair procedure. So why does Rawls want real institutions to be fair in the very special way that the original position is fair? Why not choose policies randomly, which is also utterly fair? It’s true, that wouldn’t do for the OP because we theorists could not derive any concrete conclusions. Who knows what would be chosen in a hypothetical random procedure?? But if all we want in real institutions is a fair procedure there’s no reason they have to be fair in the very specific way the OP is fair. The fairness of the OP is a pretty strange thing, after all. Its several features would never occur to us if we weren’t designing a hypothetical fair procedure that would give us determinate results.

So, while I can’t say this completely proves it, I think there are very strong reasons for seeing Rawls as wanting society to have the very special kind of OP fairness in order to tend to have the same kinds of results. That would be a version of the democracy/contractualism analogy.

Jonathans’ second comment is to propose a way of fixing the democracy/contractualism analogy. Suppose we give voters a two-part task: First, ask, about various policies, whether anyone has any reasonable objection. Then, from within the unobjectionable set, say which of those you yourself most prefer. I’m not sure I understand what problem this is meant to solve. I certainly don’t doubt that there is a task we can put to voters such that they will collectively tend to make substantively good decisions. And I don’t deny (or grant) that the standard for substantively good decisions is itself contractualist. On Jonathan’s proposal voters would not simply be asking themselves the question what is just. They would be doing that, and then also asking which of the just choices they prefer. The results would (he’s granting) tend to be just, and only because justice has been directly addressed by each voter. The results would also be something more, call them “optimal,” because voters would have entered their own preferences as well. Now how do we fit this into an analogy argument? For this to be analogous to a hypothetical contractualist procedure we would have to say that “optimal” is defined by what would, hypothetically, be preferred by a majority from among the policies they directly decided were just.

If I understand the suggestion, it seems to conjoin two ideas neither of which restores a democracy/contractualism analogy. One component is a rejection-joining procedure, as I call it. This, I think, is not a contractualist idea, but seems only to point toward one in which there is no rejection joining: It asks which proposals are beyond reasonable rejection, imagining contractors who are reasonable and can reject for their own reasons. That would be the contractualist core of the proposal, but as we have seen that’s not something that could be plausibly mirrored in actual procedures. Trying to make the hypothetical procedure look more like a feasible actual procedure requires a specious kind of proceduralizing. Why ask contractors what proposals count not be reasonably rejected? If we theorists can figure what they would say, it’s because we can figure out the answer ourselves by considering a proper, non-joining, contractualist situation. It’s like (as I say in the book) trying to make utilitarianism look contractualist by asking contractors which arrangements would maximize happiness. It’s a theoretically otiose move that can hide the fact that there is really nothing contractualist about it.

Jonathan adds the wrinkle about optimality. If the first “joining” idea didn’t solve the problem we should first take this one separately and see if it does. Then there’s the possibility that somehow they solve it only together, which we can return to. So, separating the optimizing idea, I take it the idea is that optimality is defined as whatever would, hypothetically, be said by most people to be preferred by them. Then if we could design actual procedures in which people would sincerely register their preferences and we could choose the one that is most preferred, the results would approximate those of the ideal preference-maximizing procedure. Fair enough. But, of course, the hypothetical procedure here is not contractualist, since there is no unanimity rule. So by itself it doesn’t save the democracy/contractualism analogy.

So, brought together, do these components give us a contractualist theory of what we might call “optimal justice” that supports a more plausible democracy/contractualism analogy? I think not. Neither component of the hypothetical procedure is really contractualist, even though the underlying moral theory is. Justice is not really constituted by the hypothetical “joining” procedure. The optimality phase is fine as far as it goes, but it isn’t contractualist and doesn’t do anything to fix the problem with the pseudo-contractualist phase. In sum, optimal justice is not, on this view, constituted by anything structurally similar to a feasible democratic procedure.

I won’t say much about Jonathan’s third point, which is about my sketch of a way to understand the reasonableness of the contracting parties in contractualism without giving them the primary question. I sketch one way to do this, which gives each person the question whether their own personal reasons give them a weightier objection than any other single person. If so, they may reasonably object. This is not the same question as whether there is any proposal to which no one has a reasonable objection. Jonathan notes Parfit’s objection to this sort of criterion. There are cases where, intuitively, the numbers count, but where the kind of proposal I sketched won’t let them count, since many can be vetoed by one. (I’m putting it very roughly here for reasons of space.) There’s a literature on this kind of objection to contractualism, and so I won’t say nuch here without reviewing it more closely. I will just say that it is no part of my aim to defend contractualism. I could be right that there is this way to represent the reasonableness of the contractors without giving them the primary question, and yet contractualism might not be able to give intuitively acceptable results. But I’m not prepared to say whether or not I think Parfit’s objection is decisive.

In the further comments on Jonathan’s post, the only real question for me is about whether my view has implications for such things as judicial review. I don’t have a clear answer, but the approach suggests that the question is what would be the epistemically best arrangement so far as can be decided within public reason (acceptable to all qualified points of view). I don’t think there is a moral presumption for or against judicial review, since I don’t think there’s a moral presumption in favor of maximal democracy. Judicial review by an appointed court is not, by itself, a democratic institution, but nor does it disqualify the overall system from counting as democratic so long as the authority of the judges is itself democratic in source. Judges appointed by an elected president count, in my view, in getting their authority from a democratic source.

But the more important point is that I don’t offer any reason to think that the more democratic it is the better. For this reason, I’m inclined to think that epistemic proceduralism is, in a way, more friendly to the possibility of judicial review than more fundamentalist democratic stances. But that doesn’t tell us whether the necessary epistemic case can be made. The record of the U.S. Supreme Court is mixed and complicated, but many arguments in favor of it certainly take the right form in my view: they try to show, in publicly acceptable terms, that such an institution would improve the overall quality of laws and policies.

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One Response to Remarks on Comments on Chapter 13

  1. This is a follow-up on the question of judicial review. I was thinking that there was a presumption in favour of maximal democracy, because of the expert / boss argument. There is a presumption against authority, in the sense that authority relationships have to meet the QAR (be not-reasonably rejectable); if there are reasonable objections both for and against an authority relationship, “no authority” wins. This presumption against authority also applies to cases of unequal authority. Where some have more authority than others, this is a case of the ‘some’ having authority over the ‘others’, and therefore deviations from the default of everyone having an equal say must also pass the QAR. I thought this was a presumption in favour of democracy. There may be good reason for thinking that you have special expertise, but that doesn’t make you the boss of me, not unless your expertise can be demonstrated in such a way that I would be unreasonable to deny it. Is this not right? Perhaps I am misunderstanding what triggers the QAR. Perhaps the problematic kinds of authority relationships are those where some have no say at all, and others decide for them, whereas unequal say by itself is not a problem. Exclusions from the franchise would have to meet the QAR, but the extra authority of judges would not have to meet the QAR. That would introduce a sharp threshold; so long as no one is entirely excluded from authority, there is no need to pass a qualified non-rejectability requirement.

    David’s claim that judicial review is justified if we can “show, in publicly acceptable terms, that such an institution would improve the overall quality of laws and policies” suggests that the special authority of judges must mean the QAR. But the point about judges being democratically selected suggests the opposite. I’m not sure that was the intent, but in any case it seems to me that indirect election to a long and generally irrevocable term in office involves some (supreme court judges) having authority over others (citizens). There may be plausible reasons for thinking that judges have special expertise that will improve the quality of decision-making, with judicial review, but, applying the QAR, that expertise shouldn’t make them boss unless it can be demonstrated beyond reasonable rejection – that’s how I thought the expert / boss argument applied.

    The claim that judicial review is justified if we can “show, in publicly acceptable terms, that such an institution would improve the overall quality of laws and policies” could just mean that there must be a plausible case that judicial review improves the quality of decision-making, based on values that are not reasonably rejectable, but allowing that reasonable differences of judgment would not block judicial review. Or it could mean that the whole justification of judicial review must not be reasonably rejectable. I thought that the QAR had the latter, more demanding, less authority-friendly form. The QAR limits the doctrines available in political justification, and the term doctrine covers “a wide variety: factual statements, principles, practical proposals, and so forth” (44). So it is not just the basic normative concerns that must be reasonably non-rejectable, it is every necessary element of the case for political authority. The theory is therefore loath to accept collective authority over individual conduct, but also loath to accept departures from democracy, where collective authority is justified, because any reasonable objection to an authority relationship blocks the authority relationship, and undemocratic forms of decision-making involve some having authority over others (in a way that ordinary majority rule doesn’t). But now that I write this out I think that I may have missed some key points in Chapter 11.

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