PPPS: Just Procedures with Controversial Outcomes

Hello everyone!

My name is Emanuela Ceva and I’m a political philosopher based at the University of Pavia (Italy). The paper I’d like to discuss with you is an attempt to address (and hopefully provide an answer to) a well-known challenge to proceduralism about justice: if procedural theories of justice were genuinely open-ended, they might lead to controversial outcomes which, by definition, could not be disputed, because they had been produced by a just procedure. On the other hand, if they were committed to ruling out some outcomes by virtue of their inherent qualities, their very procedural nature would be jeopardised.

Those who endorse this position also think that it could be used to declare the implausibility of entirely procedural theories of justice.

As someone who has spent a few years trying to argue that proceduralism is at least a plausible (if not necessary, under certain conditions) alternative to substantivism, I have decided to take up this challenge, and devote this paper to showing that a qualified version of proceduralism may be developed, which is equipped to rebut the critique above.

To this aim, I shall unpack the first horn of the dilemma presented above into a twofold challenge, according to which proceduralism risks (i) fostering an “anything-goes” attitude towards justice and (ii) condemning agents to a “deaf and blind” acceptance of any outcome. In order to refute (i), I shall show that it is possible to construct a version of proceduralism that combines open-endedness with cogent prescriptions on justice. Addressing (ii), I shall concede that, for proceduralists, the outcomes of a just procedure cannot be disputed as unjust. However, this does not imply that a genuine procedural theory of justice may not allow some (admittedly limited, but still significant) space for contesting the substance of outcomes on the ground of values other than justice.

I should mention that I shall not offer an argument here explaining why a theory of justice should go procedural in the first place (a task which I’ve tried to carry out elsewhere – see E. Ceva, ‘Plural Values and Heterogeneous Situations. Considerations on the Scope for a Political Theory of Justice‘, European Journal of Political Theory, vol.6 (3), 2007, pp. 359-375). I shall, rather, focus on a more restricted defence of the plausibility of proceduralism against the dilemma outlined above.

For those who cannot cope with my dodgy accent, the pdf of the paper is available here.

David Lefkowitz’s discussion of the paper may be found here.  I thank David for his thoughtful comments, to which I shall post replies by Monday at the latest.

In the podcast (below), I read the full paper (and have added a brief commentary on the tables) but not the footnotes – which I have kept to a minumun, anyway.

Last but not least, I’d like to thank Simon for setting up this great virtual venue for seminars. I hope you’ll enjoy the paper and I very much look forward to any comments or suggestions on it.

Best, emanuela

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About Emanuela Ceva

Emanuela Ceva is Associate Professor of Political philosophy at the University of Pavia (Italy)
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4 Responses to PPPS: Just Procedures with Controversial Outcomes

  1. I’d like to thank again David Lefkowitz for his great summary and discussion of my paper.

    As my replies are going to be quite long, I’ll post responses to David’s first two points in this comment, and then address his third, final challenge in another.

    The first point raised questions the plausibility of conceiving (following Rawls) civil disobedience (CD) as necessarily involving an appeal to a shared conception of justice. According to this line of criticism, acts of CD may reveal controversies about justice, and not only the incongruence between some legal provision and an alleged shared conception of justice.

    The first point I’d like to raise in reply to this criticism concerns the example David offers to show that certain acts of CD do not make appeal to a shared conception of justice:

    “For example, it seems to me that an anti-abortion protestor who engages in an act of civil disobedience (e.g. trespassing on the grounds of a clinic where abortions are performed) may be contesting what justice consists in, and not (only) the congruence between a law permitting abortion and some allegedly shared conception of justice.”

    I’m not entirely sure I would say that two diverse conceptions of justice confront each other here. The anti-abortion protestor’s claim may well be seen as one concerning the incongruence of a law permitting abortion with the state’s commitment to safeguard citizens’ lives, and forbid murder (qua components of the shared conception of justice, as embodied in the constitution). The arguments used by (reasonable) pro-life activists are often expressed – or so it seems to me – through public reasons, equating abortion to murder rather than appealing to conceptions of justice other than that subscribed by the whole society. But this is a (probably controversial) point on the specific example used. A more serious answer to David’s challenge would be the following. (As the account of CD I employ is taken from Rawls, I shall couch my response in a Rawls-derived jargon.)

    To start with, I should make clear that I take the characterization of CD in normative rather than descriptive terms. By this I mean that, in a (liberal) democracy, acts of CD are justified when they are meant to restore justice, rather than questioning the very conception of justice informing the basic structure of a society. Accordingly, the account of acts of CD offered is not meant (primarily) to be sociologically accurate, but normatively relevant. I should have made explicit that I do not think that all acts of CD – no matter how unreasonable they are – are normatively relevant, but only those that involve an appeal to a shared conception of justice, as such an appeal is what qualifies them as “civil” rather than “pure” acts of disobedience. If a more fundamental disagreement occurred (one questioning the very conception of justice informing the basic structure of the society), acts of contestation would be more appropriately defined as acts of (possibly non violent) revolution, embodying a request for legal reform rather than amendment.

    A different, but related, consideration is the following. On an entirely procedural account of justice, disagreement involving diverse conceptions of justice would be, by hypothesis, procedural rather than substantive (contestation would be addressed to the inherent qualities of procedures, rather than of outcomes). By looking at cases of CD against the background of a shared conception of justice, I’ve intended to pick out an outcome-related act of contestation which could, none the less, say something about the justice of the procedures through which it was reached.

    The second point raised in David’s commentary concerns the difference in the grounds of justification for CD and conscientious objection (CO). In particular, if I understood his claim correctly, I may well have a justice-based complaint against a law (which would be strong enough to ask for a general revision of it), but I may be unsuccessful in making my case, and thus end up reducing my requests from a general legal change to an exemption from the contested law. As the ground of justification remains the same, the only crucial difference between CD and CO would reside in the legal result sought (revision vs. exemption). The example offered by David is the following:

    “I believe that properly understood the constitutional prohibition on discrimination requires that the state ensure that the law places no greater burden on any individual’s practice of his or her religion than it does for every other member of the state. A law requiring military service clearly imposes a greater burden on members of peace churches such as the Quakers than it does on members of other churches. Justice requires that the state offer Quakers (such as, let us suppose, me) alternative service – but the state has refused to do so. Having failed to convince the state or enough of my fellow citizens that the draft law is unjust and should be changed, I seek at least to be sheltered from this injustice.”

    As I did for the point above, I’d like to offer two different kinds of replies to this second point too. The first reply concerns the specific example given. In this case, the procedural scenario I’ve tried to outline would be compromised, as the claim raised on behalf of the Quakers would be distinctively substantive and not procedural. As it is presented, it concerns an inherent quality of the outcome (the non discrimination principle, strictly conceived, ends up placing an excessive burden on the members of one religion) rather than the procedure followed to achieve it. This makes this scenario unfit for considerations of procedural justice, which – as argued – would apply only to the way in which an outcome is reached rather than to its inherent qualities. Therefore I think this example, as David is ready to concede, does not threaten my general argument.

    Having said that, I would like to add a few more considerations on the important point that this comment raises, independently of its being couched in either substantive or procedural terms. I think I agree with David that a “hard and fast” distinction between acts of CD and CO would be unable to capture the many cases in which the features of the two “channels of contestation” mix (factually). However, I have decided to engage with pure types, to let two separate sources of dissatisfaction a citizen may have with laws or policies emerge, in terms of justice and “non public” values. It is certainly true that the phenomenology of acts of “moral law breaking” is much more complex than my, admittedly simplified, reconstruction reveals. However, I think it is fruitful to distinguish between (i) the justificatory basis of acts of CD and CO (justice vs. ethical convictions) and (ii) the ends sought by the agents performing such acts (revision of the law vs. exemption from it). I think the latter dimension should be considered as parasitic on the former, in which the actual difference between CD and CO resides. Specifically, being based on controversial ethical views, acts of CO can hardly provide a strong enough basis (in a liberal democracy) to expect that a law (deemed just – according to a shared conception of justice – by the majority of citizens) be revised, or even repealed. Accordingly, those engaged in acts of CO commit themselves to preserve at least their moral integrity.

    Put another way, a distinction is to be drawn between the reasons why a claim is made and the legal outcome pursued (and, in fact, reached). Justice-based acts of CD may well end in the concession of a right to CO secundum legem, under the circumstances described in David’s example. Similarly, ethics-based acts of CO contra legem may well end in a general revision of the law (as was the case with CO against the military service in many countries around the world). However, these contingent legal results do not affect – or so I believe – the tenability of the distinction between the grounds of contestation underpinning the two forms of protests.

    More soon, emanuela

  2. David’s third point consists in a challenge addressed directly to my contention that my account of proceduralism is equipped to rebut the challenge that it may condemn agents to a “deaf and blind” acceptance of any outcome. If the inherent qualities of outcomes may not be contested on the ground of justice, David argues, it means that a conscientious objector cannot claim to be treated unjustly by the state. Accordingly, the state could not be thought to have any duty of justice to concede an exemption to the objector, and it may at most act out of prudence or mercy. This would do little to rescue citizens from being coerced into complying, deafly and blindly, with any outcome.

    Now, in order to try and offer a tentative reply to this thoughtful challenge I’d like to revisit a distinction offered in the paper between (x) the grounds on which an outcome may be disputed; (y) the grounds on which a case should be made publicly for an exemption from a disputed norm; and (z) the grounds on which an exemption should be granted by institutions (p. 22). As argued in the paper, if x is inevitably non public (in cases of CO contra legem) this does not apply necessarily to y and (most significantly) z.

    Imagine a procedural principle of justice based on the idea of equal respect, according to which state’s procedures should be articulated in a way that gives appropriate weight to the fact that every citizen is a self-legislating moral agent. Now, imagine that following a respectful procedure (in which all citizens took part on an equal footing qua self-legislators) a law is established allowing anticipated directives on matters related to the end of someone’s life. On the account I have defended, the law may be disputed as unjust only if it were reached through an unjust procedure, which – let us assume – was not the case. Now, a doctor may nonetheless contest it as compliance with it would be incongruent with her pro-life “non-public” moral beliefs, hence her acting as a conscientious objector contra legem to seek an exemption from taking an active role in acts of medically assisted suicide.

    How should the institutions respond? As the doctor has not been treated unjustly (as she took part in the decision making procedure on an equal footing, but was outvoted), institutions are not required by justice to exempt her from the law. However, in order to treat her dissent in a respectful (read just, on this hypothetical conception of justice) way, institutions could be thought to be required by justice to set up institutionally embedded procedures through which the objector’s claims could be aired and taken into consideration. Although the objector’s request would be grounded on an ethically-derived belief, the institutions could be required by justice to treat her dissent in a respectful way.

    Justice as equal respect would require, on this procedural understanding, to grant that all citizens could enter institutionally embedded procedures to ask for legal exemptions on ethics based grounds, although it does not require that all such requests for exemptions be substantively satisfied.

    I’m not sure whether this can provide a sound reply to David’s claim, but I think it may help in further refining the terms of the issue at stake and give a more nuanced account of the impure procedural model of justice I have in mind.

    – emanuela

  3. David Lefkowitz says:

    Many thanks to Emanuela for her characteristically clear and insightful responses to my worries about some of the claims defended in her paper.

    I agree with Emanuela that we ought to distinguish between the larger class of acts of civil disobedience and the subset of such acts that are morally justified. I also agree that we should distinguish between acts of CD and acts of (non-violent) revolution. But I’m not sure I’m ready to accept the basis on which Emanuela draws these distinctions. I am inclined to treat as acts of civil disobedience those that aim to contest particular laws or policies while (at least implicitly) granting the state’s legitimate authority. Justified acts of civil disobedience, or more accurately, acts of civil disobedience to which even subjects of a legitimate state have a right to engage, are those that meet certain formal criteria (e.g. they are essentially communicative, and non-coercive though not necessarily non-violent) rather than a content-based criterion (such as restoring justice) . As Rawls puts it (somewhat opaquely), civil disobedience “expresses disobedience to law within the limits of law, although it is at the outer edge thereof (TJ, 366). Revolutions, in contrast, necessarily involve a denial of the state’s claim to legitimate authority – thus on my understanding of the two types of acts, Gandhi engaged in a non-violent revolt against the British, not civil disobedience.

    Suppose, as I and many others argue, that a state’s morally justified claim to authority, and so its citizens’ correlative duty to obey the law, does not require that its law and policies be perfectly just – even, I think, some of those that pertain to the basic structure of the political society constituted by the state. If I am right about that, and in my characterization of civil disobedience as involving (at least implicitly) an acknowledgment of the state’s claim to legitimate authority, and in my characterization of morally justified civil disobedience in terms of properties of the act type but not its content, then contrary to Emanuela’s assertion acts of CD can be morally justified (or better, morally permissible) even if they question (some aspect of) the very conception of justice informing a political society’s basic structure. An example might be an act of CD that targets the basic principles that structure the distribution of various economic goods and opportunities in the political society under examination (I know this is a substantive rather than procedural complaint, but I’m fairly certain it could be put in procedural terms).

    Of course, nothing I’ve said here shows the superiority of my views on civil disobedience in comparison to those Emanuela proposes. (For those who are interested, my account of civil disobedience can be found in ‘On a Moral Right to Civil Disobedience,’ Ethics 117 (2007): 202-33). But setting out these two different accounts may lead to useful discussion. So let me do the same in response to Emanuela’s rejoinder to the second of my initial worries.

    Emanuela distinguishes between the justifications for CD and CO and the ends sought by the agents performing such acts (a change to the law vs. exemption from its requirements). The latter, she suggests, is parasitic on the former. It is this last claim that I find troubling. I think it best to distinguish CD and CO analytically in terms of the ends sought by the agents performing such acts. This leaves open the question of what sorts of considerations might justify either act – so it may be (as I suggested in my initial comments on Emanuela’s paper) that an agent may have a justice-based reason for seeking recognition from the state as a conscientious objector (frequently, though not necessarily, after first attempting to change the law the agent (perhaps correctly) believes to be unjust). Emanuela grants that acts of CD might lead the state to grant those who engage in it conscientious objector status, but she claims that such “contingent legal results do not affect… the tenability of the distinction between the grounds of contestation underpinning the two forms of protest.” I agree that the legal results do not challenge the distinction between the two types of moral objections an agent may make to a state’s law or policy (i.e. justice-based complaints and non-public ethical complaints). What the legal results do show, I think, is that we should not make it analytically true that acts of civil disobedience are done only from justice-based reasons, while acts of conscientious objection are done only from non-public ethical reasons.

    Consider, finally, Emanuela’s response to my third worry – namely that the possibility of challenging the state’s demands by appeal to non-public ethical reasons does not adequately address the concern that proceduralism condemns agents to a “deaf and blind” acceptance of whatever outcome just procedures produce. The worry is that while prudential considerations, or considerations of mercy, may give the state reason to accommodate someone who objects to a law on non-public ethical grounds, it has no duty of justice to do so. Emanuela responds that if a procedural principle of justice is based on “the idea of equal respect, according to which [the] state’s procedures should be articulated in a way that gives appropriate weight to the fact that every citizen is a self-legislating moral agent,” then justice itself will require that the state accommodate to some extent people’s desires to act on non-public ethical reasons that they believe to be true and that apply to them. Were the state to refuse to do so, it would be failing to recognize its subjects’ status as self-legislating moral agents. Of course, recognizing one agent’s status as a self-legislating moral agent by acknowledging the permissibility of his doing acts of type X sometimes requires restricting the scope of other agents to do acts of type Y. So justice, as Emanuela understands it, provides both the basis on which to argue that the state must accommodate to some extent those who object to certain of its law and policies for non-public ethical reasons, as well as the basis for placing certain limits on the sorts of accommodations that must be made.

    All well and good – I agree with Emanuela that a just state must accommodate to some extent its subjects’ desires to act on non-public ethical reasons. Indeed, I believe that a state’s legitimate claim to political authority also requires that it manifest, in the design of its institutions and the conduct of its officials, a principled commitment to respect for its subjects’ right to freedom of conscience. A problem arises, however, in cases where there is reasonable disagreement over what the precise scope of that right is, or in other words, what exactly justice requires when it comes to accommodating agent’s desires to act on non-public ethical reasons. Now I say ‘a problem’ because I am not sure that this is a problem for Emanuela given her aims in this particular paper. Her response may be quite sufficient if we think of the challenge to which it is a response as the objection that an entirely procedural conception of justice cannot in principle provide a basis in justice for accommodating (to some extent) those who object to a given law or policy on non-public ethical grounds. Nevertheless, I think it is important to recognize the difficulty that arises when we move from the level of abstract theorizing about justice to the concrete application of that theory (or a theory of legitimate authority) to the world. It may be helpful, then, to distinguish two tasks; first, the task of fleshing out the true scope of the right to freedom of conscience, to which I take Emanuela’s response to be a contribution, and second, the task of assessing whether appeals to one’s conscience might also constitute other sorts of normative claims in certain contexts, such as appeals for mercy or the offering of an excuse.

  4. David, I apologise for replying so late to your very interesting and insightful points.

    I agree with you that a distinction needs to be drawn between those acts of contestation, grounded in justice, addressed to a specific law or a policy and those questioning the legitimacy of claims to authority. Therefore my reference to revolution was probably inappropriate. However, I think that in a well-ordered society – as Rawls defines it – in which all citizens publicly abide by the same principles of justice, it strikes me as acts of CD are morally justified only when they are grounded in the conception of justice articulated by those principles. I realise I’m just repeating my position here, rather than providing fresh arguments for it. But if one is concerned with the stability of a well-ordered society, I also think some restrictions should be placed on the types of illegal methods of protest in which citizens are morally permitted to engage. To this end, my worry is that the reference to ‘mere’ formal criteria would be too weak and risk undermining the society’s stability for the wrong reasons, as it were. This does not mean that the principles informing a society’s basic structure could never be contested and open to revision, but this would require a more radical form of protest and probably end in a wider reform rather than leading to the repeal or amendment of certain laws.

    I’m not sure whether this leads to distinguishing between CD and another form of protest, or calls for a distinction between different types of CD: those involving either first-order (CD1) or second-order (CD2) legal provisions. Both of these types of illegal protest would qualify as acts of CD as they articulate claims grounded in justice, but whilst CD1 would appeal to the sense of justice of the majority to challenge some aspects of the basic structure of the society and question its underlying conception of justice, CD2 would be aimed to contest some specific law or policy in the name of higher order, shared principles of justice. Now, if this makes sense, one may go on to argue that in a well-ordered (or nearly just) society citizens are morally justified to engage only in acts of CD2. Acts of CD1 would be morally justified only in an unjust (but still legitimate) society. Needless to say this account holds only if one accepts that it is possible to operate a morally relevant distinction between who is entitled to make decisions and what is the content of the decisions thus made. If this were plausible , a political system may be legitimate (i.e. have a rightful claim to authority) but unjust (thus opening some space for justified acts of CD1).

    This is only a sketchy account of a position that would require a more extensive argumentation to be defended appropriately, but I still hope it succeeds in giving at least an outline of the kind of argument I have in mind.

    Regarding your second point, I am still unconvinced that the ends sought by protesters (let’s bracket the legal outcomes contingently reached) should be considered what analytically draws the line between acts of CD and CO. I think that the relevant distinction lies, rather, in the reasons why I pursue a certain end (legal change) rather than another (exemption). Now, the fact that – as you put it – “an agent may have a justice-based reason for seeking recognition from the state as a conscientious objector” does not change the nature of her act as one of CD, granted it is grounded in justice. As suggested in my first round of replies, it seems to me that acts of CO secundum legem (i.e. legal exemptions) may be seen as a possible end sought by those engaged in acts of CO contra legem and CD (as you rightly qualify, “frequently, though not necessarily, after first attempting to change the law the agent (perhaps correctly) believes to be unjust”). On the contrary, it does not seem plausible that a (reasonable) citizen be morally justified to ask for a general revision of some law on the sole ground that it is incongruent with her ethically-derived, non-public convictions. I’m not sure whether this corroborates my initial formulation of the issue, but I hope it helps at least to clarify the reasons why I think it plausible.

    I think I haven’t got anything to add in reply to your third point, for which I thank you, and whose underlying worry I share. I think some work on the point needs to be done, and I hope I’ll be able to offer some thoughts on it in some future work.

    Many thanks
    – emanuela

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