Comments on: Remarks on Comments on Chapter 13 http://publicreason.net/2008/04/21/remarks-on-comments-on-chapter-13/ a blog for political philosophers Wed, 07 Jan 2009 02:03:20 +0000 http://wordpress.org/?v=2.3.1 By: Andrew Lister http://publicreason.net/2008/04/21/remarks-on-comments-on-chapter-13/#comment-617 Andrew Lister Tue, 22 Apr 2008 14:08:10 +0000 http://publicreason.net/2008/04/21/remarks-on-comments-on-chapter-13/#comment-617 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. 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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