Brennan vs. a Bad Argument for Democracy

Jason Brennan has a post up criticizing a bad argument for democracy:

  1. “People disagree about the facts, about principles of justice, about the principles of political economy, and so on.
  2. Therefore, it is illegitimate to make reference to an external, objective standard by which to judge political outcomes.
  3. Therefore, in order to resolve this disagreements in a fair way, we must have democracy.”

He has two main reasons for thinking that this is a bad argument. First, if we only cared about fairness, we could flip coins (Estlund), since that would give everyone exactly the same share of authority (none), but randomization isn’t democratic (since it’s not responsive), and it could be very unwise (if some of the options on the agenda are obviously disastrous – I’m embellishing a bit here).

Second, the argument involves an unstable combination of confidence about procedural fairness with diffidence about the evaluation of outcomes – a “half-assed form of moral relativism” because it holds that “there are objective moral standards about how to resolve disagreements, but no standards about what we should decide when we disagree.”

(He also makes a third point, which I won’t discuss: It’s not because they disagree that real voters have conflict; rather, they disagree because they identify with groups that have conflicts, and then engage in after-the-fact rationalization to justify the beliefs associated with those groups. This criticism raises bigger issues about the relevance of ideals to reality, when the gap between the two is great. I think it’s going to undermine or at least sideline a lot of different normative arguments about democracy, not just this one).

So can we make the argument better?

Here’s an argument that’s a bit better, though I think still not satisfactory:

  1. People disagree about facts, principles of justice, etc., hence they disagree about what the right public policies are, e.g. what rights and duties we should recognize in law, and enforce.
  2. But for a fairly wide range of policies, on a fairly wide range of issues, it’s clearly better to have some common policy than none at all, i.e. better than leaving each individual free to follow their own conscience about which rights are and aren’t valid, and therefore about who can defend which rights by force when.
  3. ‘Having a common policy’ involves some sizeable share of the population accepting as legitimate, and binding, policies that they think are not optimal, perhaps even unjust.
  4. To have common policies, we need a decision-procedure – one whose results will be fairly obvious even to people who disagree about what the rights policies are. The crucial function of this procedure is to legitimate controversial policy choices in the eyes of those that disagree with them.
  5. A decision-procedure won’t have this capacity to confer legitimacy on policies (with respect to those who disagree with them) if all that can be said in the procedure’s favour is that it maximizes the chances of selecting the policies one group deems optimal. For example, if a good Rawlsian like me is trying to persuade a Nozickian that she should pay the taxes she thinks too high, it will be no help for me to say “these tax rates were selected by a procedure that maximized our chances of picking Rawlsian policies.”
  6. It would not be self-defeating, however, for me to say “you should pay your taxes because they were decided upon by a procedure that gave equal authority to everyone, whatever their opinion on tax policy.”

That’s how I understand Jeremy Waldron’s arguments against the instrumental assessment of decision-procedures, from the 1990s.

The problem I see with this argument is that in steps 5 and 6 there is a confounding of two variables: intrinsic vs. instrumental modes of assessment, and degree of (reasonable?) controversy. Instrumentally-justified procedures can be legitimacy-conferring when the values and principles appealed to in assessing outcomes are uncontroversial, or at least less controversial than the values and principles at stake in the specific disputes in question (cf. Aileen Kavanagh’s critique of Waldron). Conversely, intrinsically-justified procedures can fail to be legitimacy-conferring if the values appealed to are controversial / more controversial. Imagine debating an aristocrat in a fledgling democracy in the 19th C. One couldn’t persuade the aristocrat to obey some new law the aristocrat disagrees with by pointing out that democratic procedures respect everyone’s fundamental equality. The mode of justification is intrinsic, but the value appealed to is disputed by the argument’s target audience, in this case.

The goal of legitimizing controversial policies in the eyes of those who disagree with them comes at a cost, if it requires that we appeal to a narrower range of values and principles in assessing / justifying our political decision-procedures. Should we really care what the aristocrat or racist thinks? So the arguments gets run in terms of reasonable disagreement; grounds for assessing our political system should be acceptable to all but only reasonable moral points of view. Thus the argument that Waldron at one point saw as being crucial to the defence of democracy against judicial review actually supports a principle of public reason.

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