Reading Group

Sen’s purpose in this comparatively short chapter seems to be to draw a distinction between principles of justice that focus on institutions and those that focus on behaviour and so on consequences, and then condemn “institutionally fundamentalist” principles for failing to take account of what actually happens. This distinction is supposed to be illuminated or perhaps even typified by a contrast Sen begins the chapter with, between the policies of two figures from Indian history, Ashoka and Kautilya. Ashoka, having seen at firsthand the horrors of coercion and violence during a campaign to extend his empire, apparently renounced the normal means of exercising power and instead exhorted his subjects to behave virtuously in a way that Sen reads as showing that he equated moral knowledge and moral motivation in a rather simplistic way. Indeed, as Sen notes, part of the reason that the political order did not totally collapse once Ashoka gave up on enforcing his will through force seems to have been that the administrative reforms implemented by his grandfather’s advisor, Kautilya, had a life of their own. The idea appears to be that focussing on institutions exhibits Ashoka’s utopian idealism about the possibility of spontaneous moral reform whereas focussing on behaviour and its consequences is more like Kautilya’s pragmatic acceptance of human fallibility.

This contrast though, is a different one from the one between institutions and consequences as the relevant units of moral assessment. Since, as Sen makes clear, Kautilya’s reforms were institutional reforms, it could hardly be the same one. The reason for this is that what one thinks are the relevant units of moral assessment and how one thinks about the possibilities for human motivation are two, perhaps related, but nonetheless clearly distinct questions. Blain I think has already mentioned that Sen’s reading of Rawls in this kind of area may not be entirely sympathetic, but there seem to me other cases where this claim borders on the bizarre. Hobbes, for example, is in Sen’s typology an institutionally-focused theorist, as his focus on the figure of the Sovereign presumably justifies. Yet Hobbes is clearly not of the view that human moral motivation can be improved by moral education in anything like the way that Sen presents Ashoka as being. A focus on institutions rather than behaviour or consequences in stating principles of justice may be for a number of reasons. One is that institutions provide and in a certain sense are stable patterns of coordinated behaviour enforced through sanctions, and so can constrain human behaviour in ways that ensure that it remains within at least an acceptable set of outcomes. This, for example, seems to be Hobbes’ reasoning. Not only does that depend on views of human behaviour that Sen at least implies are anathema to institutionally-focussed theorists and so demonstrate the failure of his attempt to align views of human behaviour with the focus of principles of justice, but it also casts doubt on the way that Sen wants to exclude institutional theorists from having a concern with consequences.

This is, on Sen’s account, not a symmetrical exclusion. Theories which focus on realization may take account of the ways in which the consequences they are supposed to be focussing on are produced; the means to these ends can be incorporated into their assessment. The effect of this definition is to make the struggle that institutionally-focussed theories face more difficult by allowing their opponents access to all the resources they can draw on without any parallel expansion of the tools they can make use of. The way Hobbes, though, thinks about the value of institutions is clearly dependent on their consequences. It is not clear that the consequences have any existence independent of the institutions - part of Hobbes’ case is clearly that the only way out of the State of Nature is through a near-absolute sovereign - but neither is it as if the institutions have virtues independent of the production of those consequences.

Sen acknowledges this at times, as when he observes that the difference principle is clearly an institutional requirement related to consequences: it is the production of a particular set of consequences that mean that institutions fulfil the difference principle, after all. Yet he seems determined to force institutionally-focussed theories into a deontological straitjacket, where his paradigms of institutionally-focussed theory seem to be Nozick and Gauthier, despite the fact that his real target, Rawls, clearly does not think about duties in the same sort of way. Indeed, Rawls’ own critique of libertarianism is precisely that it is not institutionally-focussed in the right way, that libertarians do not have a theory of the basic structure, thinking of it not as the exercise of public power but as analogous to private contract (see for example PL, Lecture VII, §3).

One way of thinking about this would be to think of the sorts of theories that Sen wants to condemn as failing to take proper account of consequences as procedural: a libertarian entitlement theory is roughly procedural, just as Rawls claims that institutions which meet the difference principle are examples of pure procedural justice. Yet there are a variety of different forms of procedural justice, all of which may take some interest in consequences. Whether a procedure’s outcome is appropriate because of the procedure itself or because the procedure tracks some independent criterion, considerations about the state of affairs they realize can be incorporated into their justification. As far as perfect and imperfect procedures go, the independent criterion could relate to outcomes just as it could to deontological considerations, while pure procedures may have their constitutive rules justified on grounds of their consequences; presumably competitive sports are if played to the rules pure procedures, yet changes to their rules can be and are justified on grounds of improving the spectacle.

The pair of contrasts Sen draws and claims are aligned in this chapter then seem to me unhelpful. They do not align, and the polemical use Sen wants to put them to I think relies on skewing the deck against his opponents. Part of this seems to be because of Sen’s insistence that asking “how things are going and whether they can be improved is a constant and inescapable part of the pursuit of justice”. That is why it would be wrong not to make the realization of states of affairs the focus of principles of justice. Notice though, that if the means by which states of affairs come about can be incorporated into their assessment, that this tells us nothing about whether consequences or the means of bringing them about are what can be improved. As long as deontological restraints are part of what matters from the perspective of justice, then until we know what deontological restraints are properly included in assessments of justice, this assertion is perfectly compatible with more or less any theory of justice. More, it is unclear why a perfectly general concern with the state of the world is always and everywhere a part of justice. That it would make you happy and cost me very little to say how much I liked your cooking does not mean that it is a question of justice whether I do. There are ways that things can be good or bad without being about justice, and I am not sure Sen is prepared to acknowledge that.

As its title suggests, this chapter is a critical discussion of Rawls’s political philosophy.  However, the chapter is not Sen’s only critical treatment of Rawls’s ideas in the book: some criticisms noted in the ‘Introduction’ are not developed here but elsewhere, and some criticisms mentioned here are developed further later in the book.  Moreover, the chapter is not entirely critical: Sen begins by recounting his long friendship with Rawls, and about halfway through the chapter Sen identifies seven ‘positive lessons’ from Rawls’s political philosophy.  Nonetheless, the bulk of the chapter is critical of Rawls’s views.

The following three criticisms especially struck me as I was reading the chapter:

1. Sen’s claim that if Rawls acknowledges that unanimity on a conception of justice cannot be achieved, then it follows that Rawls’s entire theory of justice is ‘devastated.’
2. Sen’s claim that Rawls simply assumes that citizens will “spontaneously do what they agreed to do in the original position” (61).
3. Sen’s worry that ‘parochial beliefs’ might adversely affect the selection of principles of justice by the parties within the original position.

I found all three criticisms unconvincing.

1.

Sen restates his pluralism with respect to conceptions of justice: “There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice” (56-7).  Consequently, he does not think that rational agents invariably will converge on a unique set of principles of justice within the original position.  Sen goes on to note that Rawls, in his later writings, acknowledges that alternative conceptions of justice might be selected by the parties in the original position.

(The picture is actually more complicated than Sen presents.  Not only does Rawls acknowledge that the original position device does not necessitate the selection of the two principles of justice as fairness, given the many different considerations to which the parties might appeal in their deliberations [JF, 133-4], he also claims that the original position device itself is only one way to satisfy the ‘criterion of reciprocity,’ and that other liberal theories might employ different justificatory strategies for arriving at principles of justice that satisfy the criterion of reciprocity [PL, xlviii-xlix].)

According to Sen, while Rawls accepts “that there are incurable problems in getting a unanimous agreement on one set of principles of justice in the original position,” Rawls fails to recognize that this “cannot but have devastating implications for his theory of ‘justice as fairness’”(58).  However, Sen does not seem to provide any argument (as far as I could discern) for this claim.  That is, I could not see why Sen thinks that Rawls’s acknowledgement that there might be a plurality of reasonable liberal conceptions of justice renders Rawls’s overall theory no longer viable.

I think that the most plausible way to understand Rawls’s project (in his writings on political liberalism, at least) is that he is trying to identify and defend what he takes to be the best justified conception of justice available, ‘justice as fairness,’ and to explain to us why he thinks that that conception of justice is the best one (namely, by means of the original position device, etc.).  Rawls hopes that we will agree with him, and that we will, in light of his arguments, achieve a reflective equilibrium in support of the principles of justice as fairness (and subsequently employ those principles when thinking about fundamental political matters).

Rawls acknowledges that this is an ongoing, open-ended democratic process.  As he writes: “…we are in civil society and…the political conception of justice, like any other conception, is always subject to being checked by our reflective considered judgements” [‘Reply to Habermas,’ 153].  Commitment to the principles of justice as fairness does not require or depend upon the achievement of unanimous support for those principles (as far as I can tell).  It is not clear why we should abandon our commitment to justice as fairness (assuming that we have been convinced by Rawls’s arguments) once we acknowledge that other reasonable and rational persons might endorse other liberal conceptions of justice.

Moreover, it is important not to overstate the scope for reasonable disagreement with respect to justice in Rawlsian political liberalism: “The limiting feature of these forms [of reasonable liberalism] is the criterion of reciprocity” [PL, 450].  Thus all reasonable political conceptions of justice (roughly, all conceptions that could be supported by reasonable persons, i.e., persons who acknowledge the fact of reasonable pluralism and are committed to satisfying the criterion of reciprocity) will include three features, according to Rawls.  These features are: (a) a set of basic (liberal democratic) rights and liberties, (b) a ‘special priority’ for these rights and liberties over other considerations of justice, and (c) measures ensuring that all citizens have adequate resources to make effective use of their basic rights and liberties.  Consequently, conceptions of justice like libertarianism and classical utilitarianism remain ‘unreasonable’ and thus ‘off the table’ in Rawlsian political liberalism (libertarianism fails with respect to (c), whereas classical utilitarianism fails with respect to (b)).  Even late Rawls, then, would reject Sen’s ‘flute example’ from the Introduction.  Therefore, the concession that Rawls makes does not look especially harmful to his overall project.  All reasonable liberal conceptions of justice are going to overlap on certain core features.  Their differences simply are not fundamental in nature.  (They concern disagreements over questions like: should the basic liberties have ‘lexical priority,’ or a ‘special weight,’ relative to other considerations of justice’?  In ensuring that all citizens have adequate means to make effective use of their liberties, is the ‘difference principle’ to be preferred, or a weaker ‘sufficientarian’ principle?  Etc.)

Perhaps Sen thinks that unanimity is required for the implementation of the principles of justice, given Rawls’s account of a ‘well-ordered society’?  This is not mentioned at all in the chapter, but I suppose that an argument to this effect might proceed along the following lines.  A fully just society, according to Rawls, is a ‘well-ordered society,’ and in a well-ordered society all reasonable persons endorse the same political conception of justice.  If unanimity on a conception of justice is recognized as unachievable, then a well-ordered society cannot be regarded as a realistic utopia, and so the Rawlsian project crumbles.  (Or so such an argument might go.  Again, Sen does not explicitly make this argument.)

However, I think that the idea of a well-ordered can easily be tweaked from one in which there exists unanimous support for the relevant conception of justice to one in which the basic structure is organized in accordance with a legitimate political conception of justice (one that satisfies the criterion of reciprocity, and thus includes the three features outlined above).  If all reasonable persons in a society acknowledge the legitimacy of the conception of justice that governs their basic structure, that society is ‘well ordered’ in nature, i.e., ‘stable for the right reasons,’ as citizens’ sense of justice is sufficient for them to freely support the conception of justice (even if the conception is not their most preferred one, and they consequently exercise their democratic rights to recommend the adoption of a different conception).  If this modest amendment to the idea of a well-ordered society is plausible, then arguments in favour of a conception of justice that claim that a society organized in accordance with it would be ‘well ordered’ in nature can still be made, that is, the idea of a well-ordered society can continue to play its role in demonstrating the feasibility and legitimacy of a conception of justice (within the second stage of the original position argument).

My apologies for this somewhat lengthy discussion!  The main point that I want to make simply is that Sen provides us with no argument, as far as I can tell, for his claim that Rawls’s acknowledgement that the original position device need not yield a unique set of principles of justice entails the demise of his overall theory.  Moreover, I’m sceptical that such an argument is available.

2.

Sen claims that Rawls’s focus on determining principles of justice for institutions leads him to neglect the ‘actual behaviour’ of people; instead, Rawls simply assumes compliance with the requirements of justice.  Within Rawls’s system, according to Sen, the selection of the principles of justice ensures not only the right choice of institutions, but also the necessary behaviour by citizens (see 69).

This strikes me as clearly incorrect.  On Rawls’s account, political power in an adequately just society is ultimately the “power of free and equal citizens as a collective body.”  Consequently, the question of whether citizens actually can do what is necessary in order to maintain just institutions over time is of central importance to Rawls’s project.  There are no ‘political institutions’ that are independent of citizens’ behaviour: “political power is citizens’ power, which they impose on themselves and one another as free and equal” [JF, 40].  Consequently, there is a vital second stage to the original position, in which the parties determine whether the principles that are selected in the first stage can be stable over time ‘for the right reasons,’ i.e., through the free support of reasonable citizens, given the parties’ knowledge of human psychology, the circumstances of justice, and so forth.

All of Part V of Justice as Fairness is devoted to this question (just as is a substantial part of A Theory of Justice, with its discussion of the ‘strains of commitment,’ the ‘argument for congruence,’ etc.).  While Rawls’s discussion of this stage of the original position is conducted at a high level of generality, the parties in the original position, when determining the stability of justice as fairness, do appeal to general psychological and social facts (as well as the general circumstances of justice, including the fact of reasonable pluralism, etc.).  Consequently, Rawls is not simply assuming that citizens in a just society will ‘spontaneously’ act in accordance with the requirements of justice.  Indeed, failure to demonstrate the stability of a society governed by principles of justice in the second stage of the original position is sufficient to show that those principles must be rejected.  While one might fault the details of Rawls’s discussion of stability, Sen is clearly incorrect in claiming that Rawls simply assumes compliance with the requirements of justice.

Perhaps Sen’s criticism should be construed as levelled against Rawls’s assumption of ‘full compliance’ within a just society?  (The argument in the second stage of the original position is meant to show that ‘full compliance’ by reasonable persons is possible, despite the fact of reasonable pluralism, and in light of, inter alia, general features of human psychology).  If so, this is not stated explicitly by Sen in this chapter.  (Although this reading might be suggested by Sen’s presentation of the “6th exclusion” of Rawls’s theory in chapter four (90).)

Certainly, when trying to realize the principles of justice in non-ideal theory, more specific information concerning ‘actual behaviour’ (including expectations regarding probable levels of non-compliance, the actions of ‘unreasonable’ persons, etc.) needs to be taken into account.  However, I do not see why such considerations would undermine the original position device and the justifiability of the principles of justice derived via that device.  This seems especially to be the case once we keep in mind the different roles of the ‘general conception of justice’ and the ‘special conception of justice’ in Rawls’s theory.  The former provides a threshold account of the requirements of justice by means of which we can judge the justice/injustice of existing, ‘non-ideal’ societies.  The latter conception of justice, in contrast, constitutes a ‘regulative ideal’ for thinking about how to reform existing societies.  Once we keep in mind the different content and roles of these two conceptions of justice in Rawls’s theory, the complaint that Rawls fails to consider adequately the ‘actual behaviour’ of persons does not seem to have much force, in my judgement.

3.

Finally, Sen criticizes Rawls’s social contract approach to thinking about justice for being vulnerable to the problem of ‘parochialism.’  Sen writes: “each country, or each society, may have parochial beliefs that call for more global examination and scrutiny” (71).  Sen pursues this criticism at greater length in chapter six, so perhaps we should postpone discussion of it for later.  Nonetheless, I wanted to note that I find this criticism deeply misguided.  The parties in the original position only know certain very general facts about their society, namely, “that it exists under the circumstances of justice, both objective and subjective, and that reasonably favourable conditions making a constitutional democracy possible obtain” [JF, 87].  Beyond that, when identifying principles of justice (as opposed to just institutions), the parties in the original position do not know more particular information about their society – and, in particular, they do not employ the kinds of country or society-specific beliefs that would give rise to concerns about ‘parochialism.’  It seems that Sen is conflating the original position, in which principles of justice are selected, with the ‘constitutional stage,’ at which point the parties apply the principles of justice to the constitutional structure of a particular society, while remaining ignorant of the particular place of the people whom they represent within that society.  (Even with respect to the ‘constitutional stage,’ though, I find Sen’s concern with ‘parochialism’ misguided.)

In conclusion, I would like to note that while I have not (so far) been very impressed by Sen’s criticisms of alternative accounts of justice, and especially Rawls’s account, I remain hopeful that his ‘positive’ project, his ‘comparativist’ approach to justice, will prove to be more compelling.

(Finally, my apologies for so grotesquely exceeding the recommended word limit!)

The main point of this chapter is to defend a conception of objectivity in our normative thinking about justice.  Against critics of the ‘Enlightenment tradition,’ Sen defends the idea that we should understand reason as the “ultimate arbitrator of ethical beliefs.”  This is not because “reasoned scrutiny” can provide us with “any sure-fire way of getting things exactly right,” but rather because ethical thinking requires us to be “as objective as we reasonably can,” and reason is our only reliable way of doing this (p. 39).  This role for reason is compatible, Sen points out, with recognizing the dangers of ‘overselling reason,’ or in being overconfident in the conclusions of our own reasoning.  Sen also makes the point that our emotions pose no threat to, and should not be understood as hostile towards, our capacity for reason, despite the fact that historically many Enlightenment thinkers may have ignored or downplayed the cognitive role of the emotions (here Sen mentions, unsurprisingly, Smith and Hume as important exceptions).  Nonetheless, “the need for reasoned scrutiny of psychological attitudes does not disappear even after the power of emotions is recognized” (p. 50).  These general claims all strike me as correct and not especially controversial.

Sen also sketches some of the main elements of his account of ‘ethical objectivity’ in this chapter.  One element is Adam Smith’s device of the ‘impartial spectator.’  Another is Rawlsian public reason.  Public reason provides a ‘public framework of thought’ by means of which arguments can be made in a transparent and mutually justifiable way.  Despite the differences amongst the different accounts of ethical objectivity mentioned in this chapter, Sen notes that “there is an essential similarity in their respective approaches to objectivity to the extent that objectivity is linked…by each of them to the ability to survive challenges from informed scrutiny coming from diverse quarters.”  Despite appropriating Rawlsian public reason to his account of ethical objectivity, though, Sen asserts that “the principles that survive such scrutiny need not be a unique set,” (p.45) and that this marks a significant difference between his position and Rawls’s.  (I don’t think that this is a fair interpretation of Rawls’s position in his later writings, but will postpone this discussion until next week.)

One potentially controversial claim is Sen’s assertion that Rawls’s and Habermas’s respective approaches to public justification ultimately do not differ much.  “If people are capable of being reasonable in taking note of other people’s points of view and in welcoming information,” Sen writes, “then the gap between the two approaches would tend to be not necessarily momentous” (p. 43).  I think that Sen is correct here (at least I think I do – I found his discussion in this section at times to be somewhat opaque), but then I haven’t read Habermas in years.  I’d be curious to know what anyone better informed of Habermas’s criticisms of Rawls thinks.

Sen makes another comment that some readers of a Kantian persuasion might find debateable.  He states: “Since reasoned support can hardly be in itself a value-giving quality, we have to ask: why, precisely, is reasoned support so critical?” (Pp. 39-40.)  I suspect that some Kantians (especially those influenced by Korsgaard’s interpretation of Kant’s theory of value) would disagree.  (Although the comment by Sen is so brief, perhaps I am reading too much into it?)

I found Sen’s comment on Rawls’s idea of ‘reasonable persons’ on the bottom of page 43 somewhat puzzling.  After noting his overall sympathy with the idea of Rawlsian public reason, he writes: “I will not make a big distinction between those whom Rawls categorizes as ‘reasonable persons’ and other human beings… I have tried to argue elsewhere that, by and large, all of us are capable of being reasonable” (p. 43).  He then goes on to remark that his own view is instead similar to Rawls’s idea of ‘free and equal citizens,’ according to which all persons have ‘two moral powers’ (a capacity for a sense of justice, and a capacity to form, revise, and pursue a conception of the good).

Sen does not seem to appreciate that Rawls’s idea of ‘reasonable persons’ is a very specific one in political liberalism, and one related directly to the idea of citizens as ‘free and equal.’  The first feature of reasonable persons is that they acknowledge the ‘fact of reasonable pluralism’ (i.e., they manifest a “willingness to recognize the burdens of judgement and to accept their consequences for the use of public reason in directing the legitimate exercise of political power” [PL, p. 54]).  The second feature of reasonable persons is that they hold the ‘criterion of reciprocity’ to be a prescriptive norm for the public political relations of citizens (“reasonable persons are ready to propose, or to acknowledge when proposed by others, the principles needed to specify what can be seen by all as fair terms of cooperation” [JaF, pp. 6-7]).  Finally, reasonable persons honour these principles, even at some cost to their own interests.  These features of reasonable persons correspond to citizens’ capacity for a sense of justice, just as the rationality of persons corresponds to citizens’ capacity for a conception of the good.  So the idea of ‘free and equal citizens’ with ‘two moral powers’ is not wholly distinct from the idea of persons understood as ‘rational and reasonable’ in Rawlsian political liberalism.  Moreover, I see nothing in Rawls’s conception of ‘reasonable persons’ that rules out the possibility that ‘all of us’ are capable of being ‘reasonable’ in the relevant sense.

This is obviously a relatively minor criticism.  However, I think that Sen’s comments here are indicative of a problem that becomes more marked in the next chapter, namely, an apparent failure on the part of Sen to address adequately key features of Rawlsian political liberalism.  This problem is well illustrated, I think, by the very label ‘transcendental institutionalism.’  I’ll have more to say about this next week.

Hi All,
This is the first post to kick off the reading group on Sen’s new book The Idea of Justice. I want to thank Blain for organizing this and I look forward to participating in it.

I have to admit it is with much anticipation that I begin to read Sen’s book. A few years ago I heard him give this talk which outlined the basics of the arguments he advances in the book. His project struck me as one that I (as a critic of ideal theory) would be very sympathetic with and I hope this book can helpfully advance the methodological debates the discipline is now engaged in. So I have high hopes for this book and look forward to reading it together with the group.

OK, so down to the business at hand. Keeping Blain’s advice about word count (I’m a bit over, sorry!) in mind, I thought I would begin by drawing attention to a crucial passage in the Preface, and then link that with a few of the central issues that follow in the Introduction itself (issues which will, I suspect, play an important role in the overall argument of the book).

In the Preface Sen explicitly states that the theory of justice he seeks to advance “aims to clarify how we can proceed to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice” (ix).

The issue of what we want a theory of justice to deliver is arguably one of the most interesting, and hotly debated, topics in the field today. Some obvious examples that immediately come to my mind are David Schmidtz’s analogy between theories and maps in The Elements of Justice, Elizabeth Anderson’s critique of luck egalitarianism, and G.A. Cohen’s Rescuing Justice and Equality where he distinguishes principles of regulation from principles of justice and maintains that the latter are “fact-free”.

The contrast between Cohen’s position and Sen’s is very stark and worth considering. The vision of political philosophy Sen is invoking, at least in this early chapter of The Idea of Justice, is one primarily concerned with the question “How should be done?”. Whereas for Cohen the primary concern of the philosopher is: “what we should think, even when what we should think makes no practical difference”. I myself come down on the side of Sen on this issue. Those partial to Cohen’s approach might maintain that we ought to privilege deliberating about perfect justice for it is only once we comprehend the ideal that we can properly undertake the practical task of trying to realize justice in the “real world”. Sen notes that he will address this kind of challenge in Chapter 4, so I look forward to seeing how he addresses that concern.

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Would anyone here would be interested in taking part in a reading group on Amartya Sen’s new book, The Idea of Justice?  If so, I would be interested in starting it up in January 2010.

Over at my other blog, I’m hosting a book symposium this week that I think will be of interest to Public Reason readers.  It’s on Nancy Rosenblum’s new book On the Side of Angels; she is taking part along with respondents including Patrick Deneen, Henry Farrell, Mara Marin, Andrew Rehfeld, Melissa Schwartzberg, Nadia Urbinati, and me.  I describe and introduce the symposium at http://jacobtlevy.blogspot.com/2009/01/on-side-of-angels-symposium.html , and the whole thing can be found at http://jacobtlevy.blogspot.com/search/label/Rosenblum-symposium .  At this posting, Rosenblum’s first entries are up; the first responses will be posted this afternoon.  Commentators are welcome and encouraged to take part in the conversation that unfolds over the course of the week.

 I would like to thank Alon for his comments on Chapter 7, especially given the importance of his own work on the topic of the chapter.  My conversations with him on this subject also have helped me to clarify my own thinking.  Nonetheless, there are some important points of disagreement.

Alon rejects the balancing approach when it comes to majoirtarian violations of many basic rights.  Although Alon leaves open the question of whether there might be such balancing in some cases, in his view, often when a majority violates basic rights that majority decision has no weight in terms of democratic legitimacy.  Alon gives us an example for instance of a plebiscite that would prohibit Corey Brettschneider from studying political science.  He argues that such laws not only violate rights but that there is no sense in which they are democratic.  He needs to make this last claim to show that such decisions have no weight or value on democratic grounds.

I am tempted to agree with Alon about this specific example.  But it seems to me that this example is a particular distinct kind of rights violation.  Namely, this law has the ad hoc character of the special laws that I argued in chapter 2 violated the most basic requirements of the rule of law in self-government.  Such a decision does not even result in the making of law, the most basic task of legislatures and plebiscites in a democracy.  Therefore such a policy has no weight because it does not even have the status of law.

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Thanks to Alex for his thoughtful and helpful post on this chapter.  His comments are especially helpful in thinking through how my account might respond to a kind of libertarian or “classically liberal” challenge. Specifically, Alex develops such a potential challenge from within the context of democratic contractualism. In particular, Alex wonders whether I am overly statist in my approach to welfare rights.  Citing Skocpol, he suggests that state involvement in welfare provision might weaken incentives of civil society groups to provide charity.  Why, he asks, should democratic contractualism rely on the state rather than charity to provide basic welfare rights?

I acknowledge the logical possibility that private markets might provide the kind of minimal welfare guarantees I defend in this chapter.  But absent any government involvement, I am skeptical that this logical possibility is likely.  More importantly, I have another worry about purely private provision of charity as a way of meeting these goals.  Although, Locke speaks of a right to “charity,” I worry that a system of purely private provision absent any state guarantees might undermine the notion that a guarantee of a minimum level of goods is in fact a right. Charity is often seen as a moral duty, but not a right required for political legitimacy.  On my account, however, it is important that these entitlements are, like the other democratic rights I defend,  necessary conditions for a legitimate state.  In sum, I acknowledge the logical possibility that these rights might be met be a market without a government safety net.  But I worry both that this is an unlikely empirical possibility and that such a system would weaken the claim that  a minimum provision of goods as a democratic right.

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Many thanks to Jim Wilson for an excellent discussion of Chapter V, “The Rights of the Punished.”  I will focus on two issues raised by his comments.  Both concern the relationship between my own theory and more traditional accounts of punishment, in particular concerns about whether punishment deters future crime as well as the possible place of my account of punishment within the retributivist tradition.

First, Jim perceptively elaborates on Hobbes’ account of punishment and asks whether it might be more compatible with my own arguments than I allow.  In particular, he asks whether a defense of capital punishment on general deterrence grounds might be brought within the scope of democratic contractualism.  As Jim makes clear, it is important for Hobbes that any account of capital punishment cannot be justified within the contractual relationship between the condemned and the state.  The ties of the social contract are severed in cases of capital punishment because the state’s sole aim is to protect life.  Capital punishment fails to meet that goal for the condemned and therefore any justification of it must sever the tie of that relationship.  The result is that for Hobbes capital punishment is justified for the state and resistance is justified for the condemned.  But this kind of justification is distinct from those that take place within social contract.  Read the rest of this entry »

CB argues for a value theory of democracy as an alternative to procedural and epistemic theories. The three core values which underlie democracy are: equality of interests, political autonomy and reciprocity. These values are implicit in the practices and institutions of contemporary democracies. They are central to democracy because they facilitate and sustain the idea of democratic citizens as free, equal and reasonable rulers. These values are understood to be not merely important and central values for a just state but central to democratic governance. A careful articulation of these values reveals that these values require respect for both majoritarian procedures - procedures which guarantee meaningful participation in decision-making — and an effective protection of substantive rights. Much of CB’s book is devoted to an examination of the conclusions which follow from the value theory of democracy. CB identifies what substantive rights individuals have and establishes the ways in which the three core values identified by him support these rights.

The question addressed by chapter 7 is what institutional structures reflect best the core values and how these institutions ought to operate. Such an institutional structure ought to respect people’s autonomy by protecting participation, protecting equality of interests and instantiating reciprocity. Determining what the ideal institutional structure is requires examining hard cases, namely cases in which the decisions generated by majoritarian procedures (and, by virtue of this fact, decisions that are congenial to some of the democratic core values) are incompatible with the substantive rights (whose protection is also congenial to the core values). When majoritarian procedures yield decisions which violate substantive rights there is always an inevitable loss to democracy. If such decisions are allowed to stand, substantive rights are violated to the detriment of the core values; if, on the other hand, these decisions are overruled by the courts, majoritarian procedures are defied to the detriment of the core values. CB believes that given such conflicts the right decision is the decision which minimizes the aggregate or overall loss to the core values. Determining what the right decision is requires therefore comparing or balancing the loss to core values resulting from an anti-majoritarian rights-respecting decision and the loss to core values resulting from a majoritarian rights-violating decision.

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In Chapter Six, Corey Brettschneider sets out to argue that citizens of ideal democracies are entitled to basic “welfare guarantees.”  In the two previous chapters, he has argued that democratic citizens are owed certain “negative rights” against state interference; here, he shifts his attention to what he calls the “positive rights of individuals to be given some particular good by the state” (114).  The argument of the chapter develops in three steps.  First, Brettschneider argues that private property in its modern form depends, for its very existence, on state coercion.  Second, he argues that private property must therefore be justifiable to all citizens (using the canons of justification he has defended so far in the book).  Third, he holds that any plausible justification of property must involve a guarantee of welfare rights to citizens.

Brettschneider begins by arguing that private property is best understood as a “bundle of rights” that fall into two categories: “vertical” and “horizontal” rights.  Vertical rights describe the owner’s relationship to the property itself and include her right to use, trade, destroy, and conserve that property.  Horizontal rights, on the other hand, describe the relationship between the property owner and other people.  The most basic of these horizontal rights is the right to exclude others, to prevent non-owners from exercising any control over one’s own property.  This right to exclude, says Brettschneider, requires the power of coercion.

Does this power of coercion necessarily implicate the state? Brettschneider acknowledges that there is some disagreement between liberals and libertarians on this question.  It is conceivable, he grants, to argue that owners could exercise such coercion themselves, or contract with others to provide it.   Such is not, however, the case in contemporary societies, where property ownership depends on state enforcement.  The duty to respect others’ property, and the corresponding right to exclude, are now enforced by law.  They must therefore be justified publicly.

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Many thanks to Eric for another stellar set of insightful and challenging comments. Eric suggests that there is more potential for conflict between the substantive and procedural aspects of democracy than in less robust theories of self-government. I largely bracket this challenge for most of the book.  My first ambition is to establish an account of democratic justification to which those coerced by law are entitled and then to think about the basic rights that are required by it.  The first six chapters seek only to demonstrate that substantive rights are a part of the ideal of democracy.  But Eric’s question moves us in the inevitable direction from ideal to non-ideal theory.  Ideally any democratic procedure would affirm substantive democratic rights and there is a loss to the democratic ideal when they do not.  But as Eric points out actual democratic procedures which are themselves justifiable on the grounds of democratic contracutalism might not guarantee democratic rights.  He asks, can the conflict between democratic procedure and democratic substance be resolved by democratic contractualism?  The question seeks to reframe our earlier discussion about the tension between substantive and procedural aspects of democracy with reference to democratic contracualism, the framework I present for applying the core values to rights controversies.   Read the rest of this entry »

In Chapter 5 of Democratic Rights, Corey Brettschneider continues his project of showing how the value theory of democracy generates support for individual rights that serve as substantive limits on the outcomes of democratic procedures.  In this chapter, he asks how a democracy might justify the punishment of criminals, one of the most dramatic and severe forms of state coercion.  In the course of answering this question, Brettschneider concludes that there are some forms of punishment that a democratic citizen reasonably could reject.  A commitment to democracy, therefore, entails substantive limits on the state’s right to punish convicted criminals.

In this engaging chapter, Brettschneider elegantly and economically covers a lot of ground.  The various arguments about the limits on the right to punishment are interesting in their own right, but they also usefully illuminate the wider theory of democratic contractualism.  By following Brettschneider’s discussions of punishment, we get a better view of the kind of justificatory strategies his theory permits or denies.  In the course of my discussion, I’ll try to raise questions not only about Brettschneider’s specific conclusions, but also about the wider theoretical issues that have already been nicely laid out by the discussants of the earlier chapters.

The basic question of the chapter is to what extent a democracy may legitimately punish convicted criminals.  (We assume, for purposes of this chapter, that the procedures leading to conviction are just, and are as accurate as we can reasonably expect.)  Following his general theory of democratic contractualism, Brettschneider approaches this question primarily by asking “which punishment a criminal qua citizen reasonably could accept” (97).  The test for legitimate punishment is hypothetical, reasonable acceptance–not actual acceptance by criminals.  Criminals are entitled to justification (on which more below), but not to an absolute veto.  Consistently with Brettschneider’s broader emphasis on democratic citizens’ status as free and equal, he argues here that “this account of justification requires rights of criminals against punishments that undermine their status as citizens” (98).

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According to the value theory advanced so far, democracy is best understood in terms of three core values: equality of interests, political autonomy, and reciprocity. These values ground democratic rights of citizens, most obviously rights associated with the rule of law, on the one hand, and familiar freedoms of conscience and expression on the other. These rights, and the values they express, take seriously our status as free citizens who are, in equal measure, the willing authors and subjects of the laws.

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So far Democratic Rights has forced a choice for theorists developing a conception of democracy. We can accept an austere procedural ideal or an expansive basket of substantive rights. Positions that fall in between are prone to instability. Ronald Dworkin famously exploited this instability in his criticism of proceduralism in Law’s Empire. He thinks that we misconstrue the concept of democracy when we identify it with the mere presence of majoritarian institutions. To make good on this claim, he treats democracy as an interpretive concept. We can get at its inner structure by constructively interpreting the practice where the concept “lives.” What follows is a method for resolving disputes about the content of the concept of democracy. We identify that values that make democracy worthwhile. The interpretation that casts democracy in its best light will yield its concept.

I hope this sets the stage for Chapter 3 of Democratic Rights. It is here that the distinctiveness and ambition of the Brettschneider’s view is fully on display. The chapter aims to put into place the pieces for a position that is considerably more expansionist than Dworkin’s. The idea is that democratic citizens – given their liability to coercion from a system of law – are owed much more than the rights traditionally associated with democracy. It is not enough to extract freedoms of speech and the rule of law from a concept of democracy. We can extend this approach to yield a package of substantive claims normally associated with a theory of distributive justice. The rights defended in Chapters 4 – 7 – including rights to privacy, basic assistance, and not to be executed by one’s state – aren’t understood to follow from ordinary usages of the bare idea of democracy.

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Many thanks to Anna for another very careful summary and an important set of questions.  In Chapter One and our discussion about it I emphasized why the value theory forces proceduralists to make a choice: Either they can acknowledge that there are values and outcomes that constrain procedures or they must give up on the idea that there are democratic rights that cannot be jettisoned.  It strikes me that Habermas tries to avoid this dilemma in his repeated insistence that his is a procedural account of democracy at the same time that he proclaims the importance of rights of addressees. Anna suggests that Habermas’ notion that “legal form” and the “discourse principle” are co-original might suggest that he is close to my own view that democratic procedures are at times constrained by some democratic outcomes.  On such a reading Habermas would have to give up on procedure as the normative grounding of democracy.  I think that this is likely the best reconstructed reading of Habermas, but it is a concession that many Habermasians do not want to make. On such a reading, procedure has a role in but it cannot serve as the fundamental normative grounding of a theory of democracy. Charles Larmore’s piece “The Foundations of Modern Democracy: Reflections on Jurgen Habermas,” is on point here and suggestive of why Habermas himself tries to resist such a move. I would be interested in hearing from others whether they read Habermas as endorsing something like the value theory or whether he might go the kind of route that Jordon Dodd was suggesting in our discussion of the previous chapter.

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Summary:

Corey Brettschneider argues in Chapter 2 of Democratic Rights that citizens’ status as rulers in a democracy entitles them to claim individual rights based on the core elements of the value theory—equality of interests, political autonomy, and reciprocity.  These democratic rights are substantive rights and not just rights of participation.  After elaborating how the value theory works to ground substantive rights, Brettschneider closes by considering how two fundamental democratic rights—to the rule of law and to freedom of speech—might be argued for from the perspective of the value theory.

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I would like to thank Micah and Eric for organizing this group.  I would also like to thank Micah for his very careful and insightful summary of Chapter One, “The Value Theory of Democracy.”  I’ll take his second question first.  Micah is right to say that the value theory rejects a sharp distinction between democracy and liberal rights but that it relocates a tension between democratic procedures and substantive rights within the ideal of democracy.  The value theory does not resolve the tension between democracy and substantive rights in the particular sense that it gives neither an absolute weight to either democratic rights or democratic procedure.  Ideally, on my view, democratic procedures will affirm democratic outcomes.  But non-ideal circumstances will arise where democratic procedures violate democratic rights.  I examine such non- ideal cases in chapter seven, which Alon will comment on.  I argue there in favor of a balancing approach between democratic substantive rights and democratic procedures when these non-ideal circumstances arise.

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Welcome to the first installment of our reading group on Corey Brettschneider’s Democratic Rights: The Substance of Self-Government. This post will focus on Chapter 1, The Value Theory of Democracy.

Summary

This chapter begins by describing the view, commonly held among liberal theorists, that there is a conflict between democracy and individual rights. On this view, democracy is defined by a set of political procedures, whereas rights are substantive, or “procedure-independent,” constraints on the outcomes of those procedures. This view leads to the following puzzle in democratic theory:  If democratic procedures confer legitimacy on their outcomes – because the people who are subject to those outcomes have also authorized them – then how can those outcomes be limited by a set of procedure-independent, or substantive, rights? This is what Brettschneider calls the “problem of constraint” (8). Read the rest of this entry »

Starting on Monday, we will be hosting a virtual reading group on Corey Brettschneider’s book, Democratic Rights: The Substance of Self-Government. Following the model of the Estlund reading group, we will be reading one chapter each week. Someone will post a brief summary of the chapter, along with a few questions or comments to help start discussion. Corey has agreed to participate, and we hope you will join us. The schedule for the reading group is included below the fold. [Corey’s responses for each chapter discussion are linked in parentheses.] Read the rest of this entry »

I’m grateful to Zofia for the excellent summary and questions. Let me say something about her question in order:

On her (1): Zofia asks whether there is really much point to hopeless ideal theory if we really know it won’t be met. I wrote that one of the benefits of such theory is that we can surprise ourselves, but suppose we really do know that certain standards will never be met. She’s write that, since we’re limiting our concern here to standards that are not beyond people’s abilities, I would insist that it is usually pretty hard to really know that they won’t ever be met. But I hasten to emphasize that my defense of hopeless aspirational theory does not rest on this conjecture. The fact, if it is one, that a certain kind of normative political theory will never be met, is not a defect in the theory. More concessive theory is valuable and important too, of course.

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Summary

Much research demonstrates that voters are largely ignorant about the issues and institutions at stake when they vote. Some research also suggests that voters are selfish and irrational. Such poor voter performance might be thought to pose problems for an epistemic theory of democracy since if the performance is bad enough democracy may not deliver on its epistemic promise – it might fail to outperform choosing policies ‘with a roulette wheel’ (262). Estlund has two answers to the challenge posed by the reports about voters’ poor performance. The main answer consists in showing that there is in general value in theories that demand of people that they behave better than they in fact behave or are ever likely to behave.

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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.

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Summary
In this chapter, David wants to distinguish his epistemic argument for democracy from what he calls the democracy/contractualism analogy (I’m going to refer to this simply as the analogy or the analogy argument). The analogy rests on two key claims. The first is that justice or moral rightness is best understood via some version of moral or political contractualism. The second claim is that democratic outcomes have the capacity to track the requirements of justice or morality because democratic institutions can be arranged in a manner that is sufficiently similar the structure of the hypothetical choice situation of whatever theory of contractualism is favoured. David rejects the analogy because he believes this latter claim is false. If democracy does track justice (something David obviously doesn’t want to deny) it is not because democratic institutions mimic the features of a hypothetical contract scenario.

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Thanks to Loren for the great summary and questions. Loren is largely sympathetic, so, as a reward, this can be more brief than most weeks. But he does raise two concerns.

First, Loren proposes a way of avoiding the disjunction problem. He says that we might suppose there is one correct way of enumerating the alternatives, leading to n alternatives, and then take individual competence to be above 1/n. “After all, we might reply that the assumption of slightly better than random voter competence presupposes correct specification of the choice problem.” I’m not sure what a correct specification of the problem would mean. Suppose we are deciding about building a bridge. We could build a cheap bridge, an expensive bridge, or no bridge. Suppose the best thing is to build a cheap bridge. If we ask the voters to choose between these three options, random competence would be 1/3. If we give them two choices: Build a bridge (cheap or expensive), or build no bridge, random competence is .5. I don’t know what it would mean to say one of these is the correct way to put the question. In any case, Loren says that even if there is a correct or privileged way to enumerate the alternatives it would remain unclear who should get to make that decision. I don’t know how to evaluate that point because I don’t get the idea of a privileged enumeration. For all I can tell, if there is a privileged enumeration it might be beyond reasonable objection. So I might benefit from some clarification of this suggestion. Read the rest of this entry »

If your account of democratic authority uses the term “epistemic” then sooner or later you’re going to have to deal with the Jury Theorem. And here is where David takes up the gauntlet.

I’ve made that seem rather dramatic, but by this point in the book the gauntlet isn’t especially heavy! After all, in preceding chapters we’ve seen a model form of deliberation, a distinction between formal and substantive epistemic value, and a careful distinction between a “test” for finding the correct answer to some shared problem (such as majority rule), and a “testing system” (such as a constitutional democracy within which majoritarian decision procedures are embedded). The Jury Theorem, as tantalizing as it may be to some democratic theorists, does not appeal to discussion and argument, relies on claims about voter competence and the substantive correctness of some choices, and it applies in the first instance to specific tests (voting and majority or plurality rule), not to a testing system per se.

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Blain’s summary is accurate and helpful, and he raises several good questions. I take those up before turning to questions by the other participants.

Blain’s first worry is whether, in the absence of an account that would give us clear boundaries for the reasonable or the qualified, we are unable to go forward with this kind of approach at all. Is any way of going forward bound to be unacceptably ad hoc? I try to indicate an alternative to this defeatist position. I mention this methodological stance briefly in several places, including pp. 63-64, p. 217, and p. 286, note 3. Notice that the wish for clear boundaries is no particular support for Blain’s second concern, that the principle of acceptability should be defended by resting it on a deeper principle of respect. It might seem as though having such a deeper account would also give us the boundaries we want. But I see no general reason to think it would. Suppose the duty not to lie is based on the categorical imperative. That’s very little help in in knowing what the exceptions are to this duty, or whether (as Kant thought) there are none. Depth and specificity are quite independent features of moral theories.

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In this chapter Estlund asks the question whether an ‘epistocracy of the educated’ — whether, as J.S. Mill recommends, the educated should receive more votes than the uneducated — could satisfy the ‘qualified acceptability requirement’, that is, be a political principle to which no qualified objection could be levelled. Most epistocratic proposals are defeated because they could not satisfy the qualified acceptability requirement, as there exists qualified disagreement in pluralist societies over who counts as ‘wise’ with respect to political matters. Thus epistemic proceduralism rules out ‘invidious comparisons’ amongst citizens with respect to their normative political wisdom (as explained in chapter II). However, given the widespread view that a ‘good political education’ promotes good political decision-making, and that under Mill’s proposal all citizens would have at least one vote, can the Millian proposal for additional votes for the educated satisfy the qualified acceptability requirement?

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In order to ensure that there is sufficient time to discuss chapter 11, we’re going to delay the other scheduled posts for the reading group by one week. The revised schedule is as follows:

Chapter 12 ‘The Irrelevance of the Jury Theorem’

Apr. 7, 2008, Loren King

Chapter 13 ‘Rejecting the Democracy/Contractualism Analogy’

Apr. 14, 2008, Jonathan Quong

Chapter 14 ‘Utopophobia: Concession and Aspiration in Democratic Theory’

Apr. 21, 2008, Zofia Stemplowska

‘Author’s Comments’

Apr. 28, 2008, David Estlund

I wanted to put up a post where people could make suggestions for further reading groups, after the conclusion of the marvelous “Democratic Authority” discussion we’ve had. If there are many suggestions, I’ll put up a poll to see which are the most popular and likely to attract broad participation. Also, if there is a lot of interest in two quite different books, then nothing stops people from organising those groups separately.

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Thanks to Rebecca for the great summary and questions about this chapter, and to Jonathan and Ben for pitching in. The chapter proposes a way to combine, in broadly deliberative approach to democracy, a central role for an ideal deliberative situation with a similarly central place in democratic practice for activities other than deliberating. I suggest that an ideal deliberation can be used as a template by which to identify actual deviations. Where there are deviations that clearly insert power over reason in favor of a particular point of view, the epistemic core of my approach recommends efforts to restore the epistemic balance. Where this can’t be done by removing the skewing element of power, it can sometimes be done by injecting power on the other side of the question in a way that attempts to neutralize the first, skewing element. The thing to emphasize is that this will often be yet a further departure from the ideal deliberative situation. An abuse of power by a certain company or industry that tilts the political system in their favor might responsibly be answered by a boycott. A boycott is primarily an exercise of brute market power, and not a rational argument in response to the company’s view. I suggest that this is a way to keep deliberation in its place: central to the theory, less central to political practice.

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[David’s response to Harry on chap. 9 is now below this post, so don’t miss it — SCM]

Summary

In this chapter, Estlund seeks to identify the correct role played by an ideal deliberative situation in democratic theory. He argues that while in practice, democratic communication should not aim to resemble ideal deliberation, nonetheless the idea has an important function as a template through which to examine real-life instances of democratic communication and identify deviations from the ideal. Real deliberative practices and institutions should not aim to mirror the model deliberative situation because when epistemic distortions arise as a result of deviations from the ideal, it may be justified to employ further deviations to remedy these. This leads him to defend a model of wide civility for the informal political sphere, which makes room for sharp, disruptive and even suppressive forms of participation under certain circumstances. This wide version of civility is appropriate only for the informal public sphere, however. In formal political institutions such as the courts and legislatures the norms of narrow civility still apply. In summary then, it seems that there are three main arguments at work in this chapter: (1) that the appropriate way to think of the ideal deliberative situation is not as a set of prescriptions for citizens to aim at, but rather as an analytical tool for diagnosing and remedying failures; (2) that there might be good epistemic reasons to reject the narrow civility inherent in model deliberation in favour of a wider version; and (3) that while the use of countervailing deviations from the ideal might be appropriate in the informal political sphere, formal instances of political deliberation ought still to be governed by the requirements of narrow civility.

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Thanks to Harry for the excellent summary and comments. His two comments really amount to a single challenge: Since a smaller-than-universal sample of the population could deliberate or vote with as much epistemic value as the universal franchise, doesn’t epistemic proceduralism end up endorsing non-democratic political institutions after all?

It’s one challenge, but with two parts. So, first, is it true that a sample could be trusted (beyond qualified disagreement) to deliberate with as good effect as if the whole adult population were enfranchised? Then, second, if so, would deliberation and/or voting by a sample count as democratic?

There’s a third question in play, raised when Harry writes, “Democracy is, in part, justified because we have an obligation to allow other people to play a full role in determining how our collective affairs will go, precisely because they have a stake in how things will go.” Here the question is not what counts as democratic, but whether we are obligated to enfranchise all adult citizens. Read the rest of this entry »

Synopsis.

Chapter 9 advances the first stage of an argument which is completed in chapter 10. I’ll just concentrate on the part of the argument that is presented in chapter 9, but it is worth seeing where it is going. The burden of the two chapters is to show that feasible democratic procedures have substantially more than random probability of finding the correct answers to what society should do. Chapter 9 only argues that an imaginary situation which Estlund calls a model epistemic deliberation would have a substantially better than random chance of getting the right answers, but he also says that this model is not an ideal for which it would be sensible to strive. Rather, it illustrates how an ideal democracy could be justified epistemically, and the subsequent chapter will argue that feasible democratic procedures for which it would be sensible to strive are relevantly like this “ideal”. The point is to “defeat a certain kind of sceptic, the one who denies that any (nonutopian) democratic arrangements could tend to perform better than random”.

How does the argument of this chapter work, then?

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Again, I’m gratified to see such a clear and accurate summary of the chapter. Let me start with Simon’s excellent questions, drawing connections to Jonathan’s where appropriate.

Simon’s question (1) is whether the system of justice that arises in Juristic Prejuria has some unique claim to obedience or whether other schemes might also arise and place similar claims on people’s obedience. This question grants, at least for the sake of argument, that the case for the jury system’s original authority goes through. It then asks, since it goes through for this arrangement, why wouldn’t it go through for multiple parallel arrangements? So the specific challenge in (1) is not to the argument for the original authority of the jury system. But if parallel arrangements can make an equal claim to authority then the authority of the jury system seems to be limited by those other possibilities. It will only work as an analogy for the authority of a whole political system if it grounds unique authority. Read the rest of this entry »

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.

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Thanks to David (I’ll call him David L. lest readers get confused about the multiple Davids on the screen) for his excellent summary and questions. The first issue he raises is about my appeal to symmetry between consent and non-consent. I say that it’s interestingly asymmetrical if consent is sometimes null but non-consent never is. David L. is quite right that symmetry of this kind is not automatically an important thing, and so it’s no basis for thinking that non-consent must also be capable of being null. But Jonathan is also right, I think, to say that we might find the asymmetry morally puzzling. That’s all I had in mind. The asymmetry just opens up a question. After that, it does no argumentative work. I refer back to the question of symmetry once or twice as I argue for normative consent, but only to stay clear about what it was that was initially puzzling.

David L.’s main concern is focused around my airplane crash example. I should say that I don’t intend that example to elicit strong predictable intuitions. (It is not like the famous trolley problems in that way.) Rather, it is just a story I can use to illustrate what it is that I want to claim. It has also proven very useful to my critics in helping them make clear just where they think I go wrong. You’re welcome.

The main line of worry seems to be that I haven’t clearly or adequately answered what I call the direct authority objection, which holds that normative consent is superfluous. As David L. points out, the crucial distinction is between what conditions materially entail authority, and what conditions morally ground authority. So it’s important first to see that these are two separate things. I give as an example the fact that all present facts about masses, forces, etc., must materially entail all the moral facts. (This claim is available to lots of different metaethical views, though not all, I admit.) But those facts don’t morally ground or support the moral facts. For example, the micro-physical facts that entail that I consent to your using my pen do not morally ground your permission even though they do guarantee it by way of guaranteeing that I consent. Read the rest of this entry »

(I’ve switched the last two posts around, so that David E’s response to the chapter 6 discussion is now beneath David L’s chapter 7 discussion. Please don’t overlook the former. SCM)

In chapter VII, ‘Authority and Normative Consent,’ Estlund takes up the challenge of justifying one agent’s authority over another. X enjoys a morally justified claim to authority over Y if and only if the mere fact that X instructs Y to f provides Y with a (prima facie or defeasible) moral duty to f. Estlund seeks to offer a novel justification for authority, which he labels normative consent. On this view, if an agent acts wrongly in refusing to consent to another’s authority, then that refusal is void and the situation is as it would have been had the agent consented to the other’s authority. For example, if for some reason I act wrongly in refusing to consent to your determining how I should spend my afternoon, then my failure to consent is null and the situation is as if I had consented - or in other words, I have a duty to acknowledge your authority by spending my afternoon as you direct me to do.

I focus here on the three main tasks Estlund undertakes in this chapter: (1) making the case for normative consent as a (but not necessarily the only) genuine source of authority; (2) a defense of normative consent against some objections likely to be made to it; and (3) a brief description of how a normative consent argument for authority might encompass (and so improve?) some other arguments for authority extant in the literature on political obligation.

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Daniel gives a very nice summary of the chapter and raises a few questions. First, he wonders whether the fact that democratic procedures might generate trust, and so compliance, is an epistemic or non-epistemic reason in its favor. Before taking that up, however, I want to quibble with his description of the options. He says that I’m mainly distinguishing between values intrinsic to a collective decision procedure on one hand, and consequentialist considerations on the other. That might not be the best way to put it, since while my theory brings in non-procedural values, it is not consequentialist. (I should say, I’m using “consequentialist,” to contrast with “deontological,” not in the broader way that some use it so that virtually any normative theory could receive a consequentialist formulation. On the latter use, there’s no interesting question about whether there is a consequentialist theory of democracy, since there would be no contrast class.) On my view, democracy is not recommended on the basis of its maximizing good consequences. It is recommended because (and when) the laws that are passed are legitimate and authoritative. They are legitimate and authoritative owing, in certain ways, to the decision procedure’s having some tendency to produce just or correct outcomes. That part is instrumental in a certain sense, but not necessarily consequentialist. The accounts of authority, legitimacy, and justice could all be deontological for all I’ve said. I’m not suggesting that Daniel misunderstood this, but my view is always at risk of being misunderstood to be consequentialist, and so I’m at pains to use that term advisedly. (I address the issue at pp. 164-167, in Chapter IX.)

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This chapter, as I read it, has four main articulations. First, Estlund sums up the basis case for epistemic proceduralism, on the basis of the arguments of the foregoing chapters. Second, he considers and rejects a final form of procedural theory, termed rational deliberative proceduralism, which views the value of procedures as residing in their being reason-generating. Third, Estlund spells out the kind of normative authority that epistemic proceduralism does, and does not possess. Fourth, he elaborates on what it might mean for a procedure to be accurate with respect to the justice of a policy proposal.I will focus on the first three articulations. I will raise some questions, but also highlight what I take to be some philosophical IOUs that Estlund takes out in this chapter.

I take this to be a pivotal chapter in the book in the following sense: it is here that he moves from the critical case against correctness theories and pure procedural ones, and towards the statement of his positive cas for epistemic proceduralism. This chapter provides us with the main structural features of the view, and provides us with a sense of the burden of argument that it must take up to be vindicated. Some of my questions will attempt to show just how demanding that burden is. Read the rest of this entry »