The Intrinsic Justice of Democratic Decision-Making

Thomas Christiano

Abstract

In this paper, I set out to defend the idea that democratic decision-making is an inherently just way of making decisions even while we can evaluate the outcomes of democratic decision-making from the standpoint of justice.  In the first part of the paper I elaborate and defend the idea that principles of social justice must be founded in what I call the egalitarian standpoint.  The principles of social justice must be such that the participants in a socially just society can see that the society satisfies those principles.  This idea is partly defended on the basis of the principle of equality of advancement of the well-being of persons and partly grounded in a set of fundamental facts about human societies and interests that persons have in being able to see that the society they live in is socially just.  So, in a socially just society people must be able to see that they are being treated as equals.  In the second part of the paper, I argue that democracy is one of the basic principles that can be defended from the egalitarian standpoint.  The argument starts from the observation that there is a great deal of disagreement among people about what laws and policies a society ought to have and it elaborates an account of the interests people have in having their judgments accorded respect against the background of pervasive disagreement.  I argue that a necessary condition for ensuring that people can see that they are being treated as equals in a society marked by pervasive disagreement about how it ought to be organized is to give each person equal rights to participate in the process of collective decision-making.  Democracy is only a necessary condition; it is not sufficient.  A set of liberal rights and a decent economic minimum are also necessary. 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

The Constitution of Equality

Chapter 2: Why Democracy is Intrinsically Valuable

 

Democratic decision-making has two very different evaluative aspects that sometimes collide and usually complement each other to some degree.  On the one hand, we evaluate democratic decisions from the point he quality of the outcomes.  We concern ourselves with whether the outcomes are just or efficient or protect liberty and promote the common good.  This is sometimes called the substantive or outcome dimension of assessment of democratic procedures.  On the other hand, we evaluate the decisions from the point of view of how they are made or the quality of the procedure.  We are concerned to make the decision in a way that includes everyone who by right ought to be included and that is fair to all the participants.  Here we may think that the method by which the decisions are made be intrinsically fair. 

            In my view these two dimensions of assessment are irreducible.  But this is not the way everyone sees it.  Some, who I shall call reductionists, think that there is only one form of assessment and that other assessments are reducible to it.  For example, instrumentalists or best results theorists like Philippe Van Parijs or Richard Arneson think that the way in which democratic decisions ought to be made is entirely a matter of what will produce the best outcomes.[1]  On their view, the only question to be asked in evaluating democratic procedures (or any political procedures) regards the quality of the outcomes of these procedures.  Pure proceduralists, on the other hand, see outcomes as essentially evaluable solely in terms of the procedure that brought them about.  There are two versions of this kind of view.  One version of the view is attributed to some American legal theorists who wish to justify a rather strong form of judicial restraint with regard to the decisions of the American Congress.  They argue that the Supreme Court of the United States ought to defer to virtually all the decisions that Congress makes except in the most obvious cases of violation of the literal words of the Constitution.[2]  Some theorists of deliberative democracy, for quite different reasons, appear to hold to a kind of pure procedural view as well; they seem to think that if a process is one that is genuinely deliberative and democratic, then it justifies the outcome or the fact that the outcome results from the procedure constitutes its justice.[3]   Instrumentalism and pure proceduralism are two forms of what I call monism but there are other forms as well.         

            I shall defend a different kind of view here from those described above.  I shall call it a form of evaluative dualism with regard to the assessment of democratic institutions.  It is dualistic because it regards democratic institutions as evaluable from two distinct and irreducible points of view that may sometimes conflict.  In this chapter, I set out to defend the idea that democratic decision making is inherently just while preserving the instrumental importance of democratic decision-making.  In the first part of the chapter I elaborate and defend the idea that social justice must be founded in public principles.  This idea is partly defended on the basis of the principle of equality defended in the last chapter.  I argue that the justification of principles of social justice must proceed from what I call the egalitarian standpoint.  In the second part of the chapter, I argue that democracy is one of the basic principles that can be defended from this standpoint. 

In the next chapter, I will discuss and respond to a number of criticisms of the argument offered here as well as a number of alternative accounts of how to conceive of collective decision-making.  In later chapters I will show how democratic decision-making has authority and I will argue that basic liberal rights can be justified in a way that is parallel to democratic rights, which parallelism grounds the limits to democratic authority.

 

 

Social Justice as a Weakly Public Principle

Since social justice concerns the kinds of claims people can make against each other in determining the appropriate balance of well being, justice is essentially a weakly public principle.  It is not enough that justice is done; it must be seen to be done.  So the principle that requires that the basic institutions of society equally advance the interests of the members of the society must do so in a way that is compatible with this requirement.  It must be given an interpretation that satisfies publicity.

The weak notion of publicity demands that the principles of social justice be ones that people can in principle see to be in effect or not.   The notion of “in principle possibility” here is to be specified relative to facts about the limitations on human cognitive abilities.  To be sure, publicity does not require that each person actually see that he or she is being treated justly.  It requires only that each person can see that he or she is being treated justly once the basic facts about our cognitive limitations are taken into account and given a reasonable effort on his part.  So a principle that requires that we go beyond our ordinary cognitive limitations to determine whether it has been realized or not is not a public principle of justice.  But a principle that a person can, given normal cognitive faculties, see to be realized if he makes a reasonable effort, is a public principle even if the person does not in fact see it to be realized on account of not having made a reasonable effort or on account of ignoring the basic facts of cognitive limitation.  In this respect the principle of weak publicity is like the legal principle that law must be publicly promulgated.[4]

Some examples may help to illustrate and lend plausibility to this idea.  First, the paradigm case of the need for publicity can be seen in the case of criminal justice.  Here the most flagrant cases of injustice are the various ways in which criminal prosecutions and trials are held in secret.  When a person has no opportunity to hear the case that the government has against him or the evidence that the government has against him, the principle of publicity is violated in a fundamental way.  When the trial of a person takes place in secret, as in the case of a “star chamber” trial, there is a further case of injustice.  Here a high premium is put on the idea that the charges and proceedings ought to be open to view to all who wish to take the trouble to view them.  Most particularly, the charges and proceedings ought to be open to the accused and the accusers as well as to independent judges.  Each must be given full access to all the materials relating to the charges and the proceedings of the trial.  Another case in which the importance of publicity can be seen is the promulgation of the law.  That the law must be publicly promulgated is one of the most fundamental principles of law.  Each must be able to know what the law is and in order for that to be the case, the legislature must take certain steps to make the law public so that all persons who have the desire to know it, can find it out for themselves.[5]  It has also been a basic principle of modern societies that legislation must be made in a public way, that is, it must be made in a way that anyone who wishes to take the trouble can see how the legislation was made.  They can sit in chamber while the legislation is made or they can read the proceedings for making legislation afterwards.  Conflict of interest laws also illustrate the importance given to publicity in modern societies.  For conflict of interest laws and ethical standards are structured in such a way that they not only attempt to avoid actual conflicts of interest, they also attempt to stave off the appearance of impropriety.  The appearance of impropriety, when it could be reasonably suspected of someone that they have violated some norm of government practice, is often enough for dismissal of government officials.  Here the idea is that the activities of government officials must not only be open to inspection, they must be publicly above suspicion.[6]

Let us take an intuitive example.  Imagine the case of a person who has borrowed money from another.  When the agreed upon due date arises, the other person asks for her money.  The debtor then truthfully says that he has paid the creditor already.  But the creditor has no recollection of this.  Now the debtor explains that he has put the money somehow directly in the creditor’s bank account.  The creditor, let us say, cannot determine this because there are too many transactions going in and out of her account.  She simply can’t verify the deposit.  And the debtor was quite aware of this when he deposited the money.  Contrast this case with one in which the debtor pays the creditor back by giving her the money personally.  Here everything is out in the open.  The first case is a case of justice done but not seen to be done while the second case is one of justice being done and being seen to be done.  What I want to say is that the first case is defective with regard to justice while the second is not.  The first pay back is not worthless nor is it completely unjust, but there is a defect in its justice compared to the second case.

Publicity is not itself an independent good or requirement.  Indifferent actions that are done publicly do not thereby become just.  Nor do injustices become more just if they are public.  Publicity is a dimension of those requirements associated with social justice.  It is not a separable component of social justice.  Publicity is a dimension on which one can do better or worse.  There is justice in actions that have little publicity.  In our example of the debtor who has paid back the creditor in a way that she cannot see, there is justice in his action, it is simply a defective justice.  A lesser publicity makes an action less just or defective with regard to justice.  A greater publicity makes an action more just or more complete with regard to justice.  And the polarity reverses with reversals in justice.  So a more public injustice is a greater injustice than a less public injustice.  For example, if an injustice is in fact perpetrated on someone but those who have perpetrated it do not agree that it is an injustice (as long as their beliefs are held conscientiously and they fall within a certain range) the injustice is less than if all, including the perpetrators, rightly believe that it is an injustice.  In these respects, publicity for societies is a bit like voluntariness for individuals.  Just as the voluntariness makes a wrong action worse than an involuntary wrong action and a voluntary right action is better than an involuntary right action, so the action of a society that publicly does right is better than one that does right in a way that is not public.  And a public injustice is worse than an injustice that is not public.

Finally, weak publicity requires only that the recipient be able to see that she is treated in accordance with what are in fact the correct principles of justice.  It does not require that her views about justice are correct.  In our examples above, the creditor may, for some reason, believe that she is entitled to more than the agreed amount of money.  So even if she is fully aware that the debtor paid his debt to her as their agreement specified, she may think that he has not acted justly because she has a (let us say) false conception of justice that requires debtors to pay back even more than what the agreement specified.  In this case, the principle of weak publicity is still satisfied under the assumption that what the debtor did was in fact just and what he did was publicly accessible to the creditor. 

Unlike the examples above, the publicity I will argue for here relates to basic principles of social justice.  Social justice relates to the principles that govern the activities of a society or a group of persons when they attempt to bring about justice for themselves.  It states that in a society attempting to establish justice among its people, the principles underlying its institutions must realize justice in a public way or in a way that reasonable and properly informed people can see to be realized.  So in a society attempting to realize egalitarian justice, it must be the case that equality is realized in a way that the members of society can see that they are being treated as equals once they are properly informed and make a reasonable effort.

 

The Context in which Publicity Assumes Importance

Publicity acquires special importance for justice when people are attempting to implement justice among themselves.  The most clear cut case of this is the state.  One of the main functions of the state throughout history has been to establish justice among persons.  The state makes and executes laws that define what is each person’s by right and what are each person’s duties towards others as well as towards the whole society.  The state also sets up courts for the resolution of conflicts between persons that are intended to resolve the conflicts justly.  The state makes a claim to act in the name of justice.  Of course it often fails to do so.  Often it merely claims to act in the name of justice while in fact advancing only the interests or concerns of the ruling class.  But it does make the claim and that is one thing that identifies the establishment of justice as one of the basic functions of the state.

            The state is only one way in which individuals attempt to establish justice among themselves.  Individuals also attempt to treat each other justly.  In doing this, they attempt to establish justice in their actions and in the norms that arise in their interactions.  They may do this by setting up norms, trade agreements or by simply coordinating among themselves.  The state is not a logically necessary condition for people to interact with each other justly.  But it is, as I will show below, socially necessary for justice to be established when the full complexity and richness of human societies are at issue.

            One main purpose of the state is to establish justice among persons within a limited jurisdiction.  And justice is something we owe to one another on a constant basis.  What does it mean to say that the state and its legal system establish justice?  It means that the legal system of a reasonably just society determines how one is to treat others justly if one is to treat them justly at all.  What the state does, if it is reasonably just, is settle what justice consists in by promulgating public rules for the guidance of individual behavior. 

Why are public rules for the guidance of behavior so important to justice?  First, in Joseph Raz's words, justice underdetermines what system of rules we must adopt.[7]  Many different systems of rules can realize the same principles of justice.  To be sure, we may have a general sense that human beings have conditional rights to own property, but, in general, we do not know whether this person has a right to this particular property and what the particular implications are until we know what the rules for the society are.  To act justly it is essential for us to be on the same page with others, to coordinate with them on the same rules.  Otherwise, though two people may be perfectly conscientious and even believe in the same basic principles, they will end up violating each other’s rights if they follow different sets of rules that implement the same principles.  To suppose otherwise is to suppose that there are clear natural rights and duties accessible to all  (or a set of highly salient conventional rules) concerning how we should act even in the most detailed circumstances.[8]  Since, in order to treat others justly, we must be acting on the basis of the same rules, in a complex society we need an authority for promulgating those rules in a publicly clear way and we must expect individuals to comply with the rules the authority lays down. 

Since the rules are likely to be quite complex, individuals must take the rule maker to be authoritative in order successfully to act on the basis of the same rules.  Why are they likely to be complex?  One reason is that the constraints we must abide by in dealing with other people justly are quite complex and subject to a number of different realizations.  Rules defining property rights such as when they are acquired, when a voluntary exchange occurs, when exchange is not exploitative, when one person’s use of his property imposes too much of an externality on others, when a person loses his property as a result of lack of use, etc are all very complex on their own and require that there be public rules.  A second reason is that justice is at least in some significant part concerned with assuring the common good and certain kinds of distributions of power, opportunities, education and income.  Rules defining property and its limits as well as taxation are necessarily quite complex because they must satisfy both the concern that certain constraints be respected and that certain overall distributional properties be maintained in the society.

The complexity of these rules and the variety of possible rules that could realize the same principles of justice simply make it impossible for people to be able to have coordinated expectations on them without their accepting an authoritative rule maker.  And, it is necessary for people to have coordinated expectations with one another in order to treat each other justly.  Thus the complexity of the rules and the variety of possible realizations of justice imply that in the ordinary case one cannot treat others justly unless one submits to an authoritative rule maker.

            The complexity of the rules and the variety of realizations of justice make it such that I cannot determine for myself what to do, I must comply with the rules because they are made by the public rule maker.  Otherwise, I will often be mistaken about what a useful public rule will do and I will also not be able to depend on my fellow citizens to treat me properly.  These particular rules determine what are just interactions among persons, only because there is an artificially created public set of rules that defines property, fair contribution to political society and other matters in social life.

            My thesis in this section is that when individuals come together to establish justice among themselves whether by means of the state or some other system of norms and rules, it is essential that the system of rules be publicly just.  It is essential, in other words, that justice not only be done but that it can be seen to be done.

 

The Arguments for the Principle of Publicity

There are two types of arguments for the principle of weak publicity: the formal argument and the substantive arguments.  First, social justice concerns the kinds of claims people can make against each other in determining the appropriate balance of benefits and burdens.  That is, principles of justice must spell out ideals that people can appeal to in criticizing their relations with each other and social justice must be able to provide, at least in principle, concrete guidance as to how to legitimate their relations.  A principle that cannot be seen by individuals to be implemented or one that does not permit individuals to be able to see that it is not implemented is not able to provide the guidance justice provides. It is not enough that justice is done; it must be seen to be done.

Now I shall provide a substantive argument for publicity.  I argue that each citizen has fundamental interests in being able to see that he is being treated as an equal in a society where there is significant diversity among persons in the conditions of well being, and where there is disagreement about justice and wherein each citizen can acknowledge fallibility and cognitive bias in their capacities for thinking about their interests and about justice.

The background conditions of these fundamental interests are the facts of diversity, pervasive disagreement, cognitive bias and fallibility.  By diversity of persons, I mean that that the interests of persons are quite different.  One basis of diversity of persons is diversity in natural talents and handicaps.  Individuals with sensitive ears are likely to get a lot more out of music than others do.  Individuals with strong constitutions are likely to get a lot more out of physically demanding activities than others do.  Individuals who are intellectually talented are likely to find more rewards in intellectual activities than others do.  These are just a few crude ways in which individuals differ from one another that affect their capacities for well-being.  People differ from each other in myriad ways aside from these and the combinations of these differences guarantees that the well-being of different people are likely to be quite different. 

Notice, that these conditions of diversity with respect to well-being do not in any way presuppose a subjectivist account of well-being.   This diversity of conditions implies that people’s capacities to achieve objectively valuable states are quite diverse and clearly their abilities to appreciate and enjoy these states are likely to be extremely diverse. Of course, to the extent that there is a subjective element to well-being, which consists in the appreciation and enjoyment of intrinsic goods, there will be a great deal of diversity in capacities for well-being.

The diversity of persons in any moderately complex society is also assured by the fact that persons are raised in families that live in very different sectors of societies.  The division of labor in society guarantees that individuals have very different experiences.  They also learn very different things from those with whom they interact.  Different sectors of society tend to develop distinct cultures and even worldviews.  They also equip individuals with distinctive abilities and sensibilities, which condition their capacities for well-being. 

Of course, the dynamism of normal societies ensures that because individuals move between sectors of societies, they are likely to have a real mix of traits from different sectors of the society.  Furthermore, societies are dynamic in others ways that condition the interests of their members.  People move from society to society thus mixing different cultural traditions and experiences and sensibilities.  The net result of all these conditions of diversity and their mixture with other conditions is to guarantee that individuals’ capacities for well-being are extremely diverse. 

The fallibility of moral judgment is pervasive, even when confined to the parameters set by a principle of equality.  The principle of equality requires one to compare and weigh the interests of persons who are quite different from oneself and who have lived their lives in parts of the society that are quite different from one's own.  The trouble is that one is likely to be quite often mistaken about what those interests are and how to compare them to one's own.  Indeed, individuals are rarely able to give as much as rough sketches of their own interests in social life and most often individuals find themselves in the process of continually adjusting their conceptions of what is good for themselves and others.  People’s understandings of other people’s interests are likely to be far more fallible and subject to arbitrary influences.  In many cases, people simply do not have the knowledge or understanding to come to anything more than an extremely crude and faulty grasp of other people’s interests.

Furthermore, the principles by which to bring together all these varied, complex and obscure interests are likely to be quite often very difficult to discern and assess.  Most obviously comparisons between interests are likely to be at best extremely crude and highly defective.  Furthermore, discerning whether another person’s interests are authentic or autonomous or overblown is likely to be a highly hazardous enterprise.  Determining whether another’s interests are genuinely his own is also highly problematic.

Different conceptions of equality and their appropriate applications are also likely to lead to serious disagreement.  If we think of the different options for the interpretation of equality such as equality of welfare, equality of opportunity for welfare, equality of resources, equality of capacities, equality in the distribution of primary goods and equality of access to advantage to name just a few, we can see how differing interpretations of the ideal of equality are also likely to attract serious disagreement.  Just to name a few disagreements, theorists disagree on the extent and significance of voluntariness in the generation of people’s interests.  Theorists also disagree on the importance of a person’s judgment in defining the interests and equal shares of each person.  Theorists disagree on the extent to which some kind of freedom (the determination of which is itself highly controversial) is necessary to the characterization of equality.  The issues that lead to disagreements about the above conceptions of equality also lead to disagreements regarding whether some form of equality of outcome ought to be accepted over some form of equality of starting points such as equality of opportunity either of the formal variety or of the more positive variety that demands equal starting points in life.

The correct application of any one of these principles is also likely to be an extremely fallible process fraught with controversy.  In many cases, it is unquestionably best for people not even to try to apply the principles.  And in many of these cases it is highly likely that it is best not even to try to figure out whether these principles are satisfied or not.[9]  For example, to argue that a person’s interests ought not to be as much advanced as another’s because they are somehow illegitimately expensive interests to satisfy is highly likely to be an extremely hazardous and fallible process.  In addition, merely attempting to determine when expensive interests are to be satisfied and when they aren’t is a difficult matter on which people disagree.  Commonsense and the ubiquity of controversy among intelligent persons on these matters are sufficient to underscore these points. 

            Against this background of diversity, universal fallibility and disagreement, citizens’ judgments are usually cognitively biased towards their interests in various ways, and as a consequence, controversy over principle often reflects conflict of interests.  Obviously citizens’ judgments reflect the various conditions that affect their well-being.  Their judgments reflect their experiences, sensibilities, abilities and those of the people they most interact with.  Individuals' judgments of what is just or unjust are in two main ways more sensitive to their own interests than those of others.  One, persons understand their own interests better than the interests of others.  And so they tend quite reasonably to interpret the interests of others in the light of their understanding of their own interests.  So each person’s conception of the common good or of equality of interests will tend to be grounded in conceptions of other people’s interests that assimilate them to their own, and assume that others’ interests are qualitatively similar to their own.  But this implies that conceptions of equality and the common good will reflect the interests of the persons who advance them.  Since in complex societies individuals’ interests are likely to be qualitatively quite diverse, failing to take account of a particular group’s conception of the common good may well imply ignoring their qualitatively distinctive interests.  Two, individuals are more sensitive to the harms they undergo than to those of others, so they may inadvertently unduly downplay harms to others.  This holds especially when they do not fully understand those harms.  The harms of others are assigned lesser weight.  Both the tendency qualitatively to assimilate the interests of others to one’s own and to assign a lesser weight to the clearly distinctive interests of others distort one’s judgments about the proper distribution of benefits and burdens to the detriment of others.  And more generally, the conceptions one has of other people’s interests are likely to reflect the conditions that ensure diversity of capacities for well-being. 

            This fact of cognitive bias is also likely to play a role in the creation of disagreements regarding conceptions of equality and their applications. The principles by which one compares and balances the interests of different persons are highly likely to be affected by cognitive bias.  How much significance one places on voluntariness in determining claims of justice, how much importance one places on one’s own judgment in deciding what is good for one, how one compares one’s interests to those of others are all likely to be deeply affected by cognitive bias.  These kinds of things receive different weights and significances in the activities characteristic of different sectors of society and each person is most likely to reflect that fact in his or her own judgment on these matters.  The variety of valuations of freedom, voluntariness, self-determination, personal integrity and preference satisfaction as well as intrinsic goods are likely to reflect the conditions in which people develop their views.  These views are likely to be cognitively biased towards the conditions that determine the capacity for well-being of a person and thus are likely to reflect the interests of the different persons in the debates.

None of this is meant to suggest that individuals generally intentionally mould principles to their own advantage or use such principles as a mask for their own interests.  Though they often do that, individuals also simply have natural cognitive biases towards their own interests.   The more pluralistic a society is the more there will be disagreement, fallibility and the more the cognitive biases will distort their understanding of other people’s interests.

Obviously, all of these facts are likely to produce an enormous amount of conscientious disagreement on how equality is to be realized among persons.   My point here is not to argue that there is no truth of the matter regarding what human interests really are or what the correct conception of equality really is.  I think that there are truths of the matter here.  My point is that the truth regarding these principles and their application is likely to lead to serious conscientious disagreement and is likely to be highly fallible in a way that is important to how we structure our political institutions.  To see why these disagreements and fallibility are important, we need to enumerate the interests that are engaged when these facts are present.

            Given these natural biases, and the prevalence of disagreement about justice, each citizen has a fundamental interest in correcting the cognitive biases of others. To be treated in accordance with someone else’s conception of equality, of my interests and of how to compare my interests with hers is likely to lead to a serious setback to my interests given the facts of cognitive bias.  No citizen wants merely to be treated in accordance with someone else’s conception of equality.  Each has an interest in being treated as an equal, in at least some fundamental respects, in a way that he can agree that he is being treated as an equal. If all citizens have this perception then there is at least to that extent a bulwark against the biases working against anyone’s interests.

            To be required to live in a world that is shaped entirely by another’s judgments, in the light of the facts laid out above, is to have one’s interests setback and it is to have the other’s interests advanced if the fact of cognitive bias is present.  This implies that being required to submit entirely to the judgment of another, no matter how conscientious that other is, is to have one’s interests subordinated to the other’s interests.  This phenomenon of subordination of interests is deepened to the extent that we are talking about groups of persons determining the society in accordance with their shared judgments and other groups not having the opportunity to make the society conform to their judgments. 

            The subordination of interests does not imply that those who do the subordinating are better off than those who are subordinated.  We may not be able to determine that one way or the other.  The normal case will probably be one in which those whose views of how society ought to be organized prevail are the ones who are better off.  But this need not be the case in every instance.  What it does seem to imply is that, given the facts of disagreement and cognitive bias, the interests of those who are being subordinated are being given less significance than those of the others.  They are being treated as unequals or inferiors in the sense that their interests seem to matter less than those of the others.  Hence, we have an important kind of inequality that arises from the lack of publicity in a society.  And we can see how publicity advances a kind of equality among the members of the society.  Publicity provides essential protection to every member against the inevitable and pervasive tendencies of imperfectly constituted cognitive agents to judge in a way that is biased towards their own interests.

A second fundamental interest in publicity emerges when we see that individuals' judgments often reflect modes of life to which they are accustomed and in which they feel at home.  To live in a world governed by the principles one adheres to as opposed to someone else's is often, in Michael Walzer's apt simile, like living in one's own home furnished by one's own familiar things and not in someone else's or in a hotel.[10] 

The interest in being at home in the world is fundamental because it is at the heart of the well-being of each person.  Being at home in the world one lives in implies that one can appreciate that world and enjoy it’s many valuable qualities.  Being at home in the world one lives in is one of the socially necessary conditions for one to have well-being.  For it is the condition in which one has a sense of fit, connection and meaning in the world one lives in and it is therefore the condition in which one can experience the value of the things around one.  It gives one an orientation among the things in one’s world that enables one to appreciate them.

To the extent that there are interests related to this sense of at-homeness, and their judgments about justice reflect this sense, individuals have interests in the world they live in conforming to their judgments.  Each citizen has a fundamental interest in having a sense of being properly at home in the society in which he lives.  To the extent that a person sees himself as being treated as an equal, he has that sense of being properly at home in an egalitarian world.

Living in a world that corresponds in no way to one’s own judgment of how the world ought to be arranged is to live in a world that is opaque and perhaps even hostile to one’s interests.  It is to live in a world where one does not see how legitimately to make it responsive to one’s interests.  It is like playing a game whose rules do not make any sense to one.  One is at a loss.  Of course, such an experience can be an adventure if it is had for brief periods and if one experiences it against the background of a place from which to secure sustenance and to which one may return.  But living in a world where one is permanently barred from feeling at home is a serious setback to one’s interests. 

Those who live in this world, which does make sense to them, by comparison, do have their interests advanced.  Here again, we can see that those who are required to live in a world that is shaped to accord with the judgments of others have their interests subordinated to those of the others.  We can see then another way in which lack of publicity implies a serious inequality when we consider the facts of disagreement and cognitive bias.  Publicity, or the ability to see that one is treated justly and as an equal, is itself a kind of bulwark of equality.

Again, since we do not have clear comparisons of well being, it will not always be clear that those who dominate the society are better off than those who do not, though we have reason to believe that in the normal case they will be.  What is fairly clear is that the interests of those for whom the society is opaque are being set back for the sake of the interests of those for whom the society does seem to correspond to their judgment in some significant way.  And it is also clear that this setback is not for the sake of equality, that is it is not for the sake of advancing his interests and setting back the other’s interests for the purpose of bringing about greater equality between them.  So a society that fails publicly to embody justice at least from the informed and conscientious points of view of one of the groups is one that is treating that group as an inferior.

It is important that there be some significant fit between one’s own conception of the way the world ought to be organized and the way it is organized.  But there are limits to this requirement of at homeness.  That limit is set by the principle of equality itself.  That is, the interest in being at home in one’s world may not sacrifice equality itself.  The interest may only be satisfied by being at home in an egalitarian world.  Hence the principle of publicity that is defended by this interest in at homeness is a principle of public equality.  Someone who judges that others ought to be subordinated to him because they are inferior does not generate a claim to be able to have the world correspond to his particular judgment.  He does have some claim, namely to be able to see the world conform to equality given his cognitive limitations and given the facts I have listed above, but he cannot have a claim to see the world conform to his judgment against equality.

            Third, each person has a fundamental interest in being treated as a person with equal moral standing among his fellow citizens.  To be treated in a way that entirely ignores one’s way of perceiving how one is treated, constitutes a serious loss of status for a person in a society.  A person whose judgment about that society is never taken seriously by others is treated in effect like a child or a madman.  Such a person is denied recognition of his or her moral personality, indeed of those capacities in virtue of which he has the special status of person. The society is expressing its indifference to the capacity of this person to appreciate justice and thus is expressing its indifference to his special moral status of humanity.  This already is a serious set back to his interests as a person with humanity.

Moreover, if the facts cognitive bias, at-homeness and standing are taken into account by citizens, it should be clear that those adult persons who are denied the right of being able to see that they are being treated as equals are having their interests set back for the sake of the interests of the dominant group and this is being done simply in order to advance the interests of the dominant group.  They are being treated as inferiors and being told that their interests are not worthy of equal or perhaps any consideration of justice.  This is a disastrous loss of moral standing. Since there is a deep interest in having one’s moral standing among one’s fellows clearly recognized and affirmed, such a denial of the right to publicity must be a serious setback of interests.

Still, someone might object that in trying to unilaterally impose his conception of equality and violating publicity, he is merely trying to implement the correct conception of equality among him and his fellow citizens.  He might object that he cannot be properly accused of subordinating the interests of others to his own if this is what he is trying to do.   He is merely trying to bring about equality.  To this objection we can respond that given knowledge of the facts of judgment, he is in fact subordinating the interests of others to his own at least with respect to the interests in judgment. 

But there is a second nearby objection that is more telling.  The objector might agree that he is subordinating the interests in judgment of the others to his own, but he could attempt to sustain the objection by saying that he is doing so for the sake of greater equality overall.  He claims to have the correct conception of equality and claims thereby that if he implements it, people will be in a just state of affairs that advances their interests equally.  He admits that there is a loss to those who are unilaterally imposed upon but he thinks that the loss is worth it for the sake of imposing the conception of equality that he claims to be the correct one.  How can anyone object on the basis of equality?

This is an important objection because it calls for an amplification of my statements about the character of the facts and interests at stake in judgment.  The proposed objection supposes that the facts and interests that I have outlined only pertain to the exercise of judgment and are separable from the interests at stake in the disagreement about policy.  It gives the impression that those whose interests in judgment are being set back are merely complaining that their voices are not taken seriously and that they make this complaint despite their belief that the unilateral imposer may be right about the substance of the matter.  They seem to be displaying the vice of willfulness and asserting that the unilateral imposer is failing to placate their self-regard by ignoring their judgment.  Just having your judgment ignored by another, even if the other person is right, is a kind of insult on this interpretation.  But this particular set back to interests is entirely separable from the issues at stake in the disagreement in the first place.

The response to this objection is that the facts about cognitive bias and he interests in correcting for it, the interests in being at home in the world and the interests in being affirmed as an equal are more fundamental than the objection supposes.  These facts and interests do not merely pertain to the exercise of judgment in the sense that one can set back those interests without setting back the interests that the unilaterally imposed regime is supposed to advance.  The above propositions about the facts and interests in judgment imply that the unilaterally imposed form of equality will, in all likelihood, set back the interests of those who are imposed upon.  The facts and interests connected with judgment are not separable from the interests that are at issue in the disagreements about policy.  If the facts and interests in judgment are set back then the interests at stake in the issues that are disagreed on are highly likely to be set back.  If the interest in judgment that involves correcting for cognitive bias is set back then the policies that are implemented without regard for what others think are likely to advance the interests of the unilateral imposer.  And if the interest in judgment that is connected to being at home in the world is set back, then the person in question is likely to have her interests set back when the unilaterally imposed policy is brought about.  Even the interest in being recognized and affirmed as an equal is likely to be set back by the unilaterally imposed policy because its set back is connected to the set back of the two interests just described.  So the thesis is that when the interests in judgment are set back, this implies that the interests at stake in the policy being judged will be set back.

So what must be said in response to this objection is that if the person in question is apprised of all the facts about judgment and the connected interests we have laid out in this section, then he can properly be accused of an indefensible hubris.  Given the facts about judgment and the interests in judgment, this person is guilty of a kind of self-assertion that is incompatible with treating his fellows as equals.

Two remarks are worth making here.  One, it is not necessary that there be consensus on the principles that are publicly embodied.  All that is required is that people can see that they are being treated as equals.  The reason why this is so is because a requirement of consensus would impose an impossible burden on principles of justice.  Theories simply cannot get off the ground if they require agreement on principles themselves as a condition of justice.  They push the respect for judgment to a point that undermines justice and eventually defeats itself.  A theory of justice must rely on the truth or legitimacy of its central claims as well as the strength of its arguments.  A theory of justice of the sort that I am defending here is able to do this while avoiding self-defeat because it states that the respect for judgment displayed by a concern for publicity is itself based on equal advancement of interests; respect for judgment is not something that is of rock bottom significance.  Its significance is explained by a deeper concern for well being.

Finally, it is clear that no society can fully publicly embody justice.  This is because citizens are bound, as a consequence of the facts of disagreement, fallibility and cognitive bias, to disagree about what justice requires in a society.  Hence, the requirement of publicity will need to take into account the impossibility of full publicity.  The only way it can do this is publicly to embody equality in a way that is compatible with and respects the wide range of disagreements about what justice requires.  This, in my view, is where democracy comes in.

 

Publicity: The Egalitarian Standpoint for Establishing Justice for Human Beings

The import of these arguments is that when people try to establish justice among themselves, they must do so in a public way.   Attempts to establish justice among persons are actions we engage in on the basis of our judgments of justice.  Given what the arguments presented above show about our judgments and given the importance of equality, we cannot but require that efforts to establish justice must be constrained by the consideration that the points of view of everyone must be taken into account in the way required by publicity.  This is the only way to deal with the imperfections and distortions that inevitably accompany our efforts to establish justice that is compatible with treating all the members as equals.

            Commitment to publicity implies we imperfect human beings must evaluate considerations of social justice from the egalitarian standpoint.  It is the one standpoint that genuinely treats each one of us as equals that we have as a society on the issues that come before a society.  Equality itself is constitutive of the standpoint because each person’s interests are taken equally into account in constructing the standpoint.  And, from the standpoint, we attempt to figure out what equality demands.  If one attempts to establish equality or justice from one’s own individual standpoint and without regard for the points of view of others, one engages in a deeply oppressive and inegalitarian project, if the arguments above are correct.  So given the aim of establishing social justice among human beings, and the fact that this must be achieved through the exercise of our limited and biased cognitive capacities, we must adhere to the standard of publicity.  The principles that are justified from this public standpoint are the principles of public equality.  And the just institutions and states of affairs that satisfy these principles are call the public realization of equality.

             Of course within the bounds provided by public equality we can still attempt to realize more particular, less fully public conceptions of justice.  We can appeal to considerations that are not fully public to advance justice among our fellows as long as this is within the bounds established by public equality.

            The egalitarian standpoint provided by publicity is not like Rawls’s original position.  It does not provide the context in which all principles of social justice are justified.  It is itself grounded on the conception of justice provided by the principle of equality of advancement of interests, which has been defended in the previous chapter.  And the function of the standpoint is only to provide a justification of a particular realization of the principle of equality of advancement of interests among persons.  So it is not the ground of justification of the principles of justice.  It is the condition under which arguments for a particular version of the principle of equality are to be made. It is merely the standpoint from which arguments about how society ought to be organized must be made if the society is to be tolerably just.  When the establishment of social justice is at stake, either arguments must be made that satisfy publicity or they must be made within the context of institutions that satisfy public equality.  The principles that are justified in this way are called principles of public equality.

            The egalitarian standpoint is also distinct from the original position in another way.  It is at least possible for individuals actually to occupy the standpoint in their own society.  It does give a kind of hypothetical standard of assessment of society but it is possible actually to realize the conditions involved in the hypothetical standard. 

            Here I want to discuss a complexity about the nature of the justification from the egalitarian standpoint.  My aim here is to argue that the public realization of equality is intrinsically just.  And I will go on to argue that democracy is one essential component of the public realization of equality.  All of this is meant to show that democracy is intrinsically just.  But the arguments for the use of the egalitarian standpoint are in part instrumental.   Publicity is a kind of guarantee against the subordination of interests of one person or group by others when we are trying to establish justice among persons. Furthermore, as well will see, the arguments individuals make from the egalitarian standpoint in support of a particular conception of public equality are often instrumental arguments.  That is, it appears that we are pursuing public equality not for its own sake but only as a guarantee against bias and the subordination of interest. 

In a sense, from a god’s eye point of view, public equality does not have intrinsic value.  And by implication democracy and liberal rights do not have intrinsic value since they are public realizations of equality.  The idea here is that a god can determine without error exactly what equal advancement of interests really requires in every instance.  Perfect knowledge and power, at least according to the arguments presented above, can sidestep the requirement of publicity in trying to implement equality.  This is because none of the imperfections of fallibility, disagreement and cognitive bias are attributable to such a god, by hypothesis.

But we face the problem of what we must do once we acknowledge the fact that we do not occupy the divine standpoint.  We must attempt to argue for and defend standards for social justice that make sense to us.  The arguments above show that the standpoint from which we must make these arguments, if we are to embody equality in that very standpoint, is the egalitarian standpoint.  The public standpoint from which we attempt to argue for and against principles of social justice is the deepest standpoint we can occupy as equals. 

To say that a particular standard is instrumentally justified implies that there is some end state that the pursuit of the standard helps bring about.  So to say that the standard is instrumentally justified implies that we are in the possession of a standard that we can show to be independently defensible and that can be promoted by the instrumentally defended standard.  Either this independently defended end state is one that we can see from the egalitarian standpoint to be justified or it is justified from another point of view than the egalitarian standpoint, say from the divine point of view.  In the latter case, we must have access to the divine point of view for the justification of the independently justified standard.  In the former case, we must agree that some particular standard is defensible as a realization of equality. 

But we do not have access to the divine standpoint from which the argument for the independent standard can be made; we only have our own standpoint.  So the only way that an instrumental argument for a particular political standard can work is if we have agreement from the egalitarian standpoint on the end state standard.  That would make that end state standard a principle of public equality.  And it will be intrinsically valuable.  And those standards that are justifiable as a consequence of their bringing about the end state are merely instrumentally justified.

Here we can see that intrinsic justification is relative to the standpoint from which the arguments are made.  So those principles that can be justified in the egalitarian standpoint without reference to further end states are intrinsically justified, even though the very same principles may not be intrinsically justified from another very different standpoint to which those in the first standpoint have no access.  But this does not undermine the intrinsic justification of the standards from the first standpoint.

What I am going to argue is that the only standards on which we can achieve agreement in the egalitarian standpoint are the principle of democracy with liberal rights and a minimum.  There are no other states whose value we can agree on that can serve as end states that justify democracy or liberal rights.  Pervasive disagreement is the norm on these other states.   Therefore, if we look at the matter only from our own standpoint, we will see that democracy and liberal rights are intrinsically justified.

            We cannot do any better in attempting to realize equality than to do it publicly.  It is not the best we can do if we rank states of affairs according to a god’s eye point of view.  It is by its nature the best we can do from our own point of view if we are to understand our point of view as an egalitarian point of view or that point of view that inherently treats the interests of each as equally important in the structure of the standpoint as well as in its content.  There are no deeper or more fundamental standards in terms of which we can see that considerations of public equality are defeated.  There are no further considerations that we can appeal to in justifying the dismissal of the points of view of fellow members of society except of course public equality itself.  Hence, what may appear to be only instrumentally justified from a god’s eye point of view is intrinsically justified from the point of view of us imperfect human beings.

            As we will see in what follows, social justice cannot be fully public.  What can be done at most is to show that certain basic institutions can be justified as embodying public equality.  In particular the institutions of democratic rights, liberal rights and the guarantee of a basic minimum can be shown to be required by the idea of public equality.  But within the context of these institutions, individual citizens will argue for more particular realizations of equality.  They will of course attempts to make them as publicly defensible as possible but the standards they defend in the public forum will normally fail to satisfy the requirements of publicity.  As long as the attempts to implement these only partially public principles are made within the setting provided by the democratic and liberal rights, the principles will be legitimate candidates for implementation by the society.

            It is clear from the forgoing that public equality is not the whole of justice.  It has a special role in the establishment of justice among persons but there are issues of justice that are outside the purview of public equality.  First of all, there are the issues that arise in democratic societies that concern the conflicting and competing conceptions of justice that citizens bring to the democratic forum.  These are not fully public notions of justice; that is why there is considerable disagreement on them.  Yet citizens do not act wrongly in trying to implement these through the democratic process.  Second, the issues of global justice will invariably involve only very partially public ideas.  As we set our sights more and more on attempting to establish institutions of social justice for the global sphere we will attempt to set up institutions for deliberating about and adjudicating ideas about global justice that realize public equality.  Presumably, if the arguments below are right, these institutions will have a very strongly democratic and liberal cast.  For the moment however, we can still use the principle of equality to evaluate the global order and propose solutions for it. 

            More generally, the requirement of publicity does not rule out the kinds of theoretical discussions of the nature of equality that have yielded so much fruit in the last thirty years.  What the requirement implies, assuming the arguments for democracy and liberal rights are correct, is that to the extent that these ideas of equality are not fully public ideas, they must be offered as proposals for establishing social justice in a democratic and liberal society. 

 

Equality and Democracy

The question before us now is, what is the proper realization of equality when we look at matters from the egalitarian standpoint?  Or, what account of equality can be defended from the standpoint of human beings wherein each person is treated as an equal?  The argument so far has supported the idea that the establishment of justice in society requires that justice be publicly embodied in the institutions of society.  I have claimed that one main function of the state is to establish justice in its laws and policies among the members of the society.  The institutions of the society must publicly embody the equal advancement of interests in a way that can be clear in principle to its members.  The problem is that there are numerous good faith disagreements about what justice actually requires even if we confine ourselves to accounts of justice that are meant publicly to realize equality.  The list of kinds of disagreements in the previous section is only a start to a comprehensive list.  In addition to the various forms of equality of outcome and resources and starting points, there are also good faith disagreements about the roles of desert, self-ownership and property more generally in an account of justice that is devoted to treating individuals as equals.  Furthermore, there are disagreements about the natures of the interests that people have.  In addition to the obvious impact on a conception of justice these disagreements have, some of the disagreements have a particular relationship to collective decision-making.  These debates include disagreements about the proper roles of culture, community and identity in our understanding of a person’s well being.  Its seems clear to me that all of these kinds of disputes can easily be understood as disputes about the proper interpretation and application of the principle of equal advancement of interests.  All of them can be seen as attempting publicly to establish equality among citizens. 

            These different types of principles can all be seen in the debates that take place in modern political societies.  An account of how publicly to treat people as equals, I maintain, must include an account of how best to treat people as equals in the light of the pervasive types of conscientious disagreement that we can expect to see in political societies. 

Oddly enough there is a dynamic in modern democracies that seems to militate against seeing the importance of equality in politics.  In ordinary political life we are often inclined to see those who advance opposing positions on justice in politics as enemies, criminals or merely as promoting disguised versions of their interests or the interests of their patrons.  Of course, people do promote their interests in politics and sometimes they do so in disguised and sinister ways.  And even those who conscientiously advance distinctive points of view in politics are likely to be promoting views that reflect their interests in various ways.  The inclination in politics to see those who have different views as enemies, traitors, lackeys, criminals or just plain advancers of sinister aims, is natural enough. But much of it is merely the result of the intensity of debates in politics and the need for frequent preaching to the choir as well as encouragement and organization of the faithful coupled with the inability of people to understand each other’s arguments.  No one who participates in the politics of contemporary modern democracies can escape the inclination to strong partisanship.  But this inclination should not blind us to the fact that people do have sincere disagreements and they do have genuine arguments for their opposing views.   And these debates are rarely concluded in a way that gives decisive victory to any one of the participants.  Furthermore, the fact that people often present positions in political debates that reflect their own interests in varying degrees ought not to blind us to the fact that all persons’ views (including our own) reflect their interests, backgrounds, and other sources of distorting bias in some degree or other.  This is not something anyone can escape.  In a genuinely egalitarian society, these disagreements and the attendant passions are likely to arise but they must never allow us to forget that the public realization of equality requires that each person be given a say in how the society he or she lives in is organized, or so I shall argue.

The problem of disagreement is particularly important when we consider that in order for a society to establish justice among its members, it must do so in a way that imposes a single unitary system of law on the whole of the society.  When a system of law establishes justice, it draws everyone into the arrangement whether they agree with it or not.  And this means that individuals are quite often enlisted in respecting and supporting laws and policies that they disagree with.  The question for a conception of equality is how can a society both acknowledge the disagreements that exist among its members and attempt to establish justice among them in a way that embodies public equality?

Here I shall give an argument to the effect that democratic decision-making is uniquely suited for satisfying this principle against the background of disagreement, diversity, fallibility and cognitive bias.

The first premise in the argument is that equal advancement of interests provides a just solution to conflict of interests.  When we consider that there are deep conflicts of interests in how we ought to organize our common world, over the shared properties of society, we see that justice ought naturally to apply to these conflicts of interest.  These conflicts concern, first of all, the establishment of justice.  Since we must set up a unitary system of law, we cannot but set up a system of law that is imposed on all.  Such a system affects the interests of all the members of the society because it establishes duties that each person must fulfill and it thereby imposes burdens on each person.  It also sets up a system of the rights of each person and other legal advantages from which each person benefits.  Such a system also engages the moral interests of each person by enlisting him or her into a common project of establishing justice among them.  Each person must not only act in ways that respect the rights and other advantages conferred on others, each person is also required to support the legislative, executive and judicial apparatuses that are set up to carry out the laws and policies.  And each person is required to do what justice demands for the common good and distributive justice, which require the redistribution of income and wealth.  In this way the establishment of justice creates a common world shared by all the members of the society and in which the interests of all members are deeply intertwined. 

Furthermore, the creation of a common society usually requires that at least some public goods be created by the state or at least regulated by the legal system.  For one thing, creation of a common society requires at least some devotion to a common system of education.  How much the system should be in common is likely to be a matter of controversy but that there must be at least common standards of education as well as a devotion to the education of all members cannot be doubted.  These are necessary to the maintenance of a thriving society, which advances the common good and justice.  What these common standards are and how they are to be realized are matters that the members of society must decide in common. 

The creation of a common society requires also that collective goods such as pollution control and the regulation of environmental damage be at least monitored and often controlled by common institutions.  The creation and regulation of public systems of roads, parks, sewers, and waste management are all things about which the society must make at least some very important common decisions.  There are numerous other public goods that must be at least monitored and often created and regulated by the society as a whole in order for the society to thrive.  How much the society ought to provide as a whole, who should pay the costs and how it should do so will be matters of a great deal of controversy that will also determine key aspects of the common world we share.  Furthermore, all these decisions have important and differing impacts on each individual.  They establish a distribution of benefits and burdens for everyone and they enlist the participation of each person in morally loaded activities.

We have interests in shaping our common world, but since our interests are deeply intertwined and since they differ in many ways, they conflict.  Hence, the principle of equality ought to apply to our common social world. 

But we cannot divide up this world into pieces and then distribute them.  Our common social world in many ways constitutes an indissoluble unity.  This much follows from the fact that we are establishing justice for the society and that we need to bring about collective goods for the society.  The very effort to divide things up in a fair way requires a common scheme of justice for those among whom the fair division is taking place.  And this indissoluble unity is central to the interests of each person.  So a fully resource egalitarian principle cannot help us solve the problem of how justly to shape the common world we live in.  There must be an egalitarian principle that applies to the common world we live in that does not involve the division of the things in that world first and foremost. 

Now of course, we could try to do this by trying to make everyone equally well off or giving each person equal opportunity for well-being.  And given the principle of equality of advancement of interests, this is a legitimate aim to pursue. The trouble is that we have no clear and public ways to measure our own or others' happiness.  And we have no clear and public way to compare our own well-being with that of others except in crude ways.  Nor do we have any clear or public ways to measure and compare the opportunities that people have for well-being.  The attempts unilaterally to realize any of these or related principles would be mired in controversy in innumerable ways.  Indeed, from the egalitarian standpoint, any such attempt would quickly draw the criticism that the society was in fact being organized to advance the interests of some over others.  These points follow from the facts of disagreement, fallibility and cognitive bias that I listed above.  No effort at somehow equalizing well-being or the opportunity for it among participants with regard to these common features of society is publicly defensible even to those who accept equal advancement of interests.

It should be noted that these criticisms apply to an equality of resources scheme as well as the welfarist versions of equal distribution I discussed above.  An equal resources scheme cannot serve as the foundation of public justice because it too invokes notions that cannot be fully publicly defended.  It must have a way of determining who has more or less talent and who has greater handicaps.  And it must do this in ways that answer to the preferences of each person since talents and handicaps are ultimately defined in terms of the preferences of those who have them.  Furthermore, how much a person is to be taxed for having greater than normal talents also requires a conception of that person’s preferences over the talents and the activities the talents permit.  And how much a person is to be compensated for handicaps is also to be determined in terms of that person’s preferences as well as the preferences that most people have over these things.  Though these principles do not require the direct comparison of the well being of one person against another’s, they do require a huge amount of information about each person’s preferences and their relationships to other persons’ preferences.

What this implies is that these kinds of principles cannot serve as the foundations of public equality in a society.  The implementation of these principles cannot be seen as realizations of equality from the egalitarian standpoint.  It may be legitimate for people to offer these principles for the regulation of society once the public realization of equality is already in place.  But they cannot serve as the foundation of the public realization of equality because they cannot pass the test set up by the egalitarian standpoint of publicity.  A person who lived in a society where one of these principles was unilaterally imposed and applied, even if he agreed to it, would likely have reason to think that the society at its base is favoring the interests of some particular group at the expense of others’ interests since it is highly likely that the principle and its application would be highly controversial.

If we think of the common world as essentially a non-divisible good; we cannot divide it into resources and then distribute them.  We can, however, distribute resources for participating in collective decision-making such as votes, resources for bargaining and coalition building as well as deliberation in reasonably clearly equal ways. This would be a democratic way of resolving the problem; is it justified?

             I have spoken of conflicts of interests being resolved by democratic means.  Democracy does not however, directly constitute a solution to conflicts of interest.  In a democracy, conflicts are resolved via processes of discussion, negotiation and voting.  And citizens carry out these activities on the bases of their judgments.  Citizens advance their interests by talking and voting on the basis of what they judge to be their interests just as citizens advance the common good and justice by talking and voting on the basis of what they judge justice and the common good to be.  The system of rights to property, rights of association and rights to expression and privacy plays a large role in defining our common world.  But we wouldn't say that disagreements about the contours of these rights are per se conflicts of interests.  In this way, Ronald Dworkin is right to say that these matters are for the most part, choice insensitive matters.[11]  The right decision in these cases is not a matter of what choices people make or what interests people have in the outcomes.  These are matters of justice where we have the sense that there is a right answer to the questions at issue.  And citizens attempt to discern the right answers to these questions when they engage in much of the deliberations distinctive of democratic societies.  It would be completely false to the way democratic citizens conduct themselves in the processes of discussion to characterize them as attempting merely to advance their interests.  Of course, they are looking out for their interests and they often give their own interests too much weight in determining what the common good requires and what justice demands.  Indeed, the conclusions they arrive at often reflect their interests in this context.  But they are usually not primarily trying to advance their own interests in the process.  They desire that the society they live in be just and the interests of each be advanced in the context of the advance of the interests of all. 

            We might think, with Dworkin, that we ought to infer from these observations about the point of view of the citizen that we ought not to concern ourselves with how a political process can be intrinsically fair or just to the citizens.  We might think that if the correct aspiration of citizens is to arrive at and implement the best conception of justice and the common good, then we ought to judge political processes entirely by how good the outcomes of the decision-making processes are.[12]  We might be tempted by an instrumentalist approach to collective decision-making processes that sees these processes as evaluable entirely in terms of their outcomes.  I will argue against instrumentalism more generally in the next chapter but here I want to focus on the inference from the judgmental orientation of citizens to arrive at the best conception of justice and the common good to the claim that political processes must be evaluated entirely in terms of their outcomes.

How, if justice is a matter of public realization of equal advancement of interests, can we show that democracy offers such a public equality?  Do we have reason to offer a democratic solution to conflicts of interests and conflicts of judgment regarding what is right in matters that pertain to civil and economic justice?

Though Dworkin is right in insisting on the choice insensitivity of most if not all of the issues that arise in the democratic forum, it would be a mistake to infer from this that the principle of public realization of equality in advancement of interests has nothing to say about how fairly to make decisions in this context.  Though democratic citizens do attempt to arrive at the best judgments of how to understand the common good and justice and strive to implement these in law and policy, it is still the case that public equality demands that the interests of each person be publicly advanced equally in the process of decision-making.  It is still the case that we can make a case for the intrinsic fairness or justice of the process of decision-making on the basis of a principle of the publicly equal advancement of interests. 

First let us defeat the inference from the choice insensitivity to instrumentalism.  We can see that the inference does not hold in other contexts in which issues have choice insensitive answers.  With regard to individual choice, we can see that the issues that individuals make choices about are often choice insensitive.  We can see that there is a right answer to the question of what a person ought to do in some circumstance because one course of action would lead to an uninteresting and not very worthwhile life even from that person’s point of view while the other would lead to a very worthwhile life for that person (and no other moral issues are at stake).  But, it would be consistent with this observation to say that we owe a duty of respect to that person not to interfere with that person’s actions.  In Jeremy Waldron’s felicitous phrase, that person has a “right to do wrong.”[13]  I do not mean to endorse that claim here; all I mean to do here is to show that from the existence of a choice insensitive answer to the question of what a person ought to do, it does not follow that there is no intrinsic reason for not interfering with that person’s action.

Now I want to provide the reason for why there is an intrinsic fairness or justice to the democratic process despite the fact that the issues to which the process applies are for the most part choice insensitive.  The facts of diversity, fallibility, disagreement, cognitive bias and the interests we have along with the principle of public equality provide the keys to the final stretch of the argument for democracy.  Justice requires that we be publicly treated as equals.  But what is the best way to do this?  Democratic decision-making on the issues in contention is one necessary part of the uniquely public way of realizing equality among citizens. 

First, democracy is a publicly clear way of realizing a kind of equality.  It involves equality in voting power, equality of opportunities to run for office and ideally equality of opportunities to participate in the processes of negotiation and discussion that lead up to voting.  And it is a form of equality that has most often been taken as a sine qua non of treating persons as equals.  Historically, it has been, aside from basic civil rights, the main way in which members of society have recognized and affirmed the equality of their fellow citizens.  And it has been one of the main expressions of the demand for equal treatment in society along with the demand for civil rights.  Hence, we have good reason to think that it is a publicly clear way of recognizing and affirming the equality of citizens.  And, democracy realizes equality publicly in a way that is uniquely tailored to the problem of pervasive disagreement.

But we can, with the tools I have been developing, say why democracy is one of the main ways in which the equality of citizens is expressed in society.  Once we occupy the egalitarian standpoint of publicity we can see that the facts of diversity, disagreement, fallibility and cognitive bias and the interests in being able to correct for others' cognitive biases, being at home in society and in having one’s equal moral standing publicly recognized and affirmed ground a principle of respect for the judgment of everyone in society. Moreover, each has an interest in learning about his interests as well as justice, which is best realized in a process of discussion with others wherein others take one’s views seriously and respond to one’s views about justice and interests.  Given these facts and interests, each person’s judgment about how society ought to be organized must be taken seriously.  If someone's judgment is not permitted a hearing in society, then the interests described above will be set back.  Anyone who is excluded from participation in discussion and debate can see that his or her interests are not being taken seriously and may legitimately infer that his or her moral standing is being treated as less than that of others.  So justice, which requires public equality, demands equal respect for the judgment of each.   Let us look at each of the elements of this argument.

From the egalitarian standpoint, the facts of diversity, disagreement, fallibility and cognitive bias loom large.  The reason for this is that on the issues that divide people concerning the justice of society, there is likely to be a great deal of disagreement.  Given that each person’s judgment has cognitive biases towards her own interests built into the judgments and given the diversity of persons, each person can see that any attempt to impose a particular view of justice unilaterally in law and policy by a group of persons is likely to fail to take into account and properly reflect the interests of those who are imposed upon.  Her interests are likely to be neglected because they are ill understood and because they are likely not to be given due weight by others who do not share those interests.  And the principles by which her interests are accommodated to the others’ interests are likely to fail fully to find the proper place for those interests.  As a consequence, a decision procedure that accorded no weight to a person’s judgment and more worryingly to the judgments of whole groups of persons can be expected, given the normal functioning of human cognitive systems, to give short shrift to the interests of those persons. 

It is not as if this hasn’t been tried.  Many thinkers and legal traditions have expressed the view that a person could be virtually represented by others even if those others’ places in society, background experiences and distinctive conditions of flourishing were very different.  This was the theory behind the denial of the rights to vote of working class persons, African Americans, women and others.  The results have always been the same.  The interests of these groups were not taken into account.  Is this because those who did hold power were selfish and grasping, merely claiming to be concerned with the welfares of the others?  It seems to me to be highly unlikely that this is generally true.  Surely men did not think that they merely wanted to advance their own interests at the expense of women.  We have good reason to think that people in fact have been sincerely concerned with the well being of others.  The problem is that the well being of others is not so easy to understand.  They must be there to speak for those interests and to stand up for them.  They must be there to make sure that those interests get an adequate hearing and that they are properly accommodated in the scheme of justice that is chosen.  Otherwise, the even well meaning efforts of those who need not listen to them are likely to miss their marks.

Perhaps it is the case that this fact was not always well understood.  And so at least some members of the ruling classes of the past can be forgiven for not grasping it.  It is a contingent fact.  But we now know that it is an extraordinarily deeply rooted contingent fact that can be explained with some fairly simple ideas.  And the implication of our knowledge of this simple fact is that virtually everyone in a society that fails to accord a voice to a group of people when matters of public law and policy are at stake knows that the interests of those people are going to be neglected in important if not entirely predictable ways.  What this implies is that a society that withholds the vote from some groups of people is publicly expressing a lack of concern for those people.  And, given this knowledge, it is clear that the public withholding will be done for the sake of advancing the interests of those who do hold power.  From an egalitarian standpoint, a society that fails to give all of its sane adult members the vote is publicly treating some of its members as inferiors because the ruling group is setting back the interests of those members for the sake of advancing its own interests.

Recall that the egalitarian standpoint from which this judgment is made must be properly informed, which means that the judgments people make from that standpoint must be informed by the facts of diversity, disagreement and cognitive bias and interests that I have described.  In this context, if people judge the justice of an arrangement where a minority or even a majority assumes for itself the right to rule others, they will judge that it advances the interests of the ruling class at the expense of the others.  Hence, they will judge that it is profoundly unjust from an egalitarian standpoint.  It cannot but fail to implement public equality.

Notice how this argument makes the aspiration of each citizen to achieve justice in her society compatible with the need to assure that each person has a say in the process of deciding on how the society is best organized.  Each citizen will, within the context regulated by a principle of democracy, try to arrive at a correct assessment of, and bring about, justice as much as possible.  But they will insist that public equality regulate the collective decision-making process because they know that otherwise their interests or the interests of whoever is excluded are likely to be neglected by a process that excludes them.  As a consequence, they also know that the excluded are being publicly treated as inferiors.  They needn’t think that their aims in the democratic process must be to pursue their own interests in order for them to think that the process must publicly ensure the equal advancement of interests.

The very same conclusion is supported when we invoke the interest each person has in being at home in the world she lives in.  I have already defended the claim that this is a fundamental interest of persons.  Each person has a fundamental need to have a sense of fit with the world around him, a sense of connection with that world, a sense that this world makes some sense to him. 

What are some of the elements of being at home in the world?  First, as Will Kymlicka has pointed out, it is important for a person to face an array of meaningful choices in life, ones that offer a sense of fulfillment and intrinsic reward.[14]  Second, it is important that a person be able to affirm the institutions of which he is a part and which play a large role in directing his life.  For that he needs to understand them and he needs to think of them as making sense.  Third, it is important that the ways in which the institutions affirm or discourage activities he might engage in make sense to him.  Fourth, it is important that a person have the sense of being connected with other people in the sense that he can appreciate what they are doing and can experience some sense of identification with their actions and achievements.  In this respect it matters that the person can identify with the larger projects the society as a whole as well as the particular projects of parts of society.  Fifth, it also matters that that person’s projects are ones that others can identify with and affirm, so that the person does not have a sense of anomie.  Sixth, it also matters that each person have a sense that his more intimate self is protected and in some cases provided for in a way that makes sense to him and in a way that does not disgust or humiliate him.  And seventh, his intimate self must be provided for in a way that he knows will not generate the disgust in others or their humiliation and therefore alienation from others. 

Of course this sense of fit and connection are partly fulfilled by the voluntary associations of which he is a part such as the family, friendships, professional or work associations, clubs and perhaps religious or moral associations.  And this will be part of the basis for a right to freedom of association we will discuss in chapter 5.  Here the idea is that one basic way in which this interest of a person will be satisfied is when that person has a sense of fit, connection and meaningfulness in the larger society.  In some part this interest will be satisfied if the person or the group to which the person belongs has some say in how the legal system and policies they must obey are arranged.  They also must have some say in the choice of public provision of collective goods as well as the character of the collective goods the society is to bring about.  These institutions and policies frame the lives they are to lead and frame all the activities and associations they are members of.  And so they have a deep interest in having the sense that they fit in with these institutions. 

In addition, though each person is a member of smaller groups that play a large role in making the world they live in a home, given the dynamism of societies and the likelihood that people will change memberships and identifications on occasion, it is essential that the person be at home in the larger world.  And finally, if the person is not to be alienated from the larger project of justice the society is engaged in it is important that he have a sense of being at home in that legal and political framework.

Given this fundamental interest in being at home in the world, if a person or a group of persons has no say in the world they live in, it is highly likely that their interests will be set back and this will be for the sake of the interests of those who rule.  The ruling class will be able to form a world in which they experience a sense of fit, connection and meaningfulness. They deprive those who have no say of such a sense of being at home in the world.  The disenfranchised will be enlisted in a larger societal project that makes little sense to them and that provides little reward for them.  This situation occurs of course because the facts of diversity and disagreement obtain in the world they live.  So, from an egalitarian standpoint, the disenfranchisement of a group cannot but be seen as a public treatment of that group as inferiors.  Hence it must be rejected as unjust. 

Another interest that is promoted by each person’s democratic right is the interest in learning the truth about matters of social importance.  The reason this interest is promoted by the democratic right and setback by disenfranchisement is that one of the main ways in which a person learns about matters of social importance is when others respond to the views that they have on these issues.  This process of trial and error is promoted by the democratic right.  The basic idea here is that each person learns on matters of political and moral importance primarily through trial and error and the main process of trial and error a person learns through is debate and discussion with others.  But others will not respond to a person whose judgment is not accorded respect and in particular they will not respond to people who have little or no power.  The reason for this is that in a society where one must deal with a lot of different people with different interests and views, there will hardly be enough time just to deal with those who have power.  As a consequence, those who have no power will not receive a hearing and thus will not have the opportunities that others have to learn from the trial and error process.

Finally, we come to the last interest advanced by the democratic rights.  The interest in having one’s equal standing among one’s fellow citizens is, given the interests and facts described above, greatly set back by disenfranchisement.  The reason for this is each person has an interest in having her moral personality acknowledged and respected by her fellow citizens.  Each person, qua person, has the capacity of understanding and appreciating what is valuable.  This is what gives a person the special status that she has among the things in the world.  To exclude a person from participating in the processes by which the choice of how the society is to be regulated is to fail to acknowledge that person’s capacity for moral judgment and to treat her like a child or an animal.  This is a serious loss of status. 

In addition, given the arguments above, if a person is disenfranchised in a society that suggests a failure to acknowledge that person’s interests in correcting for cognitive bias, being at home in the world and learning.  From the egalitarian standpoint, given the facts of disagreement, diversity and cognitive bias, that suggests that the person’s interests count for little if anything.  In other words, disenfranchisement implies the claim that the person’s interests are not worthy of advancement and that the person is not owed justice.  This is a terrible loss of status and therefore a serious setback to the interests of a person.  It is a public way of treating the person as an inferior. 

The argument implies that there ought to be an institutionalized way in which the particular judgments of a person are accorded the respect that is embodied in the right to an equal say in the process of collective decision-making.  This requirement of equal respect for judgment is only a principle for regulating the political institutions of society and must not be imposed on each citizen beyond that.  Otherwise the principle would be inconsistent.  One way in which we extend respect to each individual is by allowing each individual to formulate his or her own judgments about the worth of other people’s judgments.  People may choose for themselves who to believe and whom to ally with or whose arguments are most reliable.  What is essential for political institutions is that they give each person an equal right to participate in this process of debate and adjudication; this is how all citizens must respect each person’s capacity for judgment.

The argument for the principle of respect for judgment points beyond the claim that each must have a right to participate in the process of discussion and adjudication.  It shows in addition that each ought to have rights to participate in the process of decision.  The reason for this is easy to see.  When someone is excluded from the process of decision, the facts of diversity, disagreement, fallibility and cognitive bias and the interests in being able to correct for others' cognitive biases and in being at home entail that one’s interests are likely to be neglected in the process of decision.  Moreover, the interest in having people respond to one’s views is not likely to be well served if one does not have the power to affect the decision-making.  Others are forced not to take one’s views seriously when one has no power and so many others do have power and must be listened to.  Finally, recognition of these facts and interests and the effect that lack of power has on the advancement of the interests, makes it amply clear to those who are excluded that their interests are not treated as equally worthy of advancement.   The excluded can see that they are being treated as if they have a lesser moral standing.  Hence, all the facts and interests that are aligned in favor of the principle of publicity also favor equality in the rights to participate in the processes of discussion and decision.  So when there is disagreement about justice and the common good, the uniquely best way to take everyone’s judgment seriously, so that equality is publicly embodied, is to give each person an equal say in how the society ought to be organized.  And this in turn is the way publicly to realize equal advancement of interests.  Therefore the principle of the public realization of equality supports democracy as the uniquely best realization of equality under the circumstances of disagreement and fallibility.

 

Democratic Equality

I have discussed the institutional implications of this conception of equality in great detail elsewhere, so I will not go into them in depth here.[15]  Here I want briefly to outline some of the basic implications and I want to show how certain ways of treating people as equals that have been thought to follow from the above arguments are in fact ruled out.

The arguments above support egalitarian institutions of deliberation and negotiation as well as egalitarian institutions of collective decision-making rules against the background of fair institutions of deliberation and negotiation.  The account can be used to justify equality in the opportunities to participate in deliberation and negotiation. 

It also supports a roughly majoritarian method for making final decisions. The argument above asserts that people have certain fundamental interests in having a say in how their society is organized.  But it does not imply that they always get what they want.  For given the facts of disagreement and diversity and the unity of the society for which decisions are to be made, it is inevitable that one gets what one wants out of this process only some of the time.  Only such an arrangement is compatible with treating everyone’s interests equally.   The principal alternative to a majoritarian decision rule is a system of unanimity.  But unanimity as a collective decision rule tends to be inegalitarian because it tends to favor the status quo and those whose interests are protected by the status quo.  Only a majoritarian method for ultimate decision-making has the neutrality among options and the anonymity among persons to qualify as a fully egalitarian rule for collective decision-making. 

To be sure, the standpoint of equality from which this argument is made is itself a kind of unanimity standpoint.  But when we look from that standpoint at how to establish justice, we can see that it is necessary to give each person an equal say in the process of establishing justice if we are to treat them as equals.  And that equal say itself demands that decisions be made in a majoritarian fashion.

 

Political Equality and Age Groups

One question about political equality we must ask is, do the arguments above support a conception of political equality where people always have equal political rights or is it legitimate for political rights to be age differentiated?  For example, Philippe Van Parijs has argued that it may be legitimate to suspend or diminish the political rights of the elderly on various grounds. The question is, does this violate the principle of political equality defended so far?  The reason for this question is that there is an important respect in which these proposals may not deprive individuals of power relative to other individuals.  Even if the elderly (or any other adult age group) are fully disenfranchised, individuals still face the same lifetime prospects of political power.  All persons have equal votes until a certain age and then lose power after that age.  In effect, they are given the same lifetime prospects for power.  Hence, perhaps these proposals do not violate the ideal of political equality.  Let us call this the broad conception of political equality.[16] Let us call the conception of political equality that requires that equality be preserved throughout a person’s life the narrow conception of political equality.

The principles above support the narrow conception of political equality.  There are two reasons for this.  One reason for this is that the very same problems that usually arise between persons are also likely to arise (although in a slightly attenuated form) between age groups.  People have distinct interests at different stages of their lives.  People’s lives form wholes wherein the different stages are distinct parts of these wholes.  The interests associated with the stages are themselves parts of the good on the whole of a person’s life.  Individuals’ lives are structured in part in terms of how they wish to live this sequence of stages of life.

At the same time, in a democratic society, laws and policies can change at any stage in life whether one plans for it or not.  Changes such as these have important effects on whether one can carry out one’s life in the way that one thinks best.  This is not something for which one can insure oneself entirely since even the rules governing insurance can also change over time.  In a society governed by law that can be changed, it is not the case that individuals can make choices in earlier parts of their lives that guarantee outcomes at later stages of their lives.  Hence, if individuals’ interests in organizing their lives and being able to depend on (or adjust) that organization over time are to be recognized, they must have a right to have their interests considered whenever the conditions on which they depend are subject to change.  And I have argued that under the conditions of cognitive limitations that we find ourselves in, this implies that they must have a voice in these decisions.

So the first argument for the narrow conception of political equality is an essentially protective one.  Because political decisions are being made and reconsidered all the time, citizens cannot simply set things up for themselves for the future and depend on the arrangements.  Each person must be able to advance the conditions necessary to their well being at all times and so they must have a say at all times in the determination of the conditions that affect their lives.  And the basic reason behind this is that the facts of judgment apply as much, or nearly as much, to different age groups as to different classes of persons.  The judgments of younger individuals regarding what is good for older individuals are fallible and cognitively biased towards their own interests.  To the extent that the younger can change things for the older in a way that could not have been prevented by the older when they were younger, the older must retain the right to have a say over these possible changes.

A second problem of inequality arises when we consider that different individuals assign very different relative weights to different parts of their lives and assign different roles to those parts of their lives in the overall structure.  Those who assign a more significant role to a particular stage in life are likely to do worse in a regime that does not allow them a say in collective decision making at that stage in life than those who assign a much less significant role.  This is because they will not have a say in whether and how the laws, on which their plans depend, change.   For those who assign little value to that stage of their lives this will not matter. 

To give equal consideration to the interests associated with all these different forms of life in the light of disagreement over what laws are best, it is necessary that each person have a say in whether and how the laws are changed at the different stages of their lives.  These considerations are such that individuals can see that if the elderly (for example) are disenfranchised, it will be a publicly clear expression of unequal concern for the interests of at least many persons for whom the later parts of their lives are very important.  To give public equal consideration to those persons it is necessary to give power to persons at all stages of their lives.  

Note that both of the above arguments suggest that a rejection of the narrow conception of political equality would imply a denial of the broader conception of political equality.  It suggests that some people’s overall interests when considering their lives as a whole will be less taken into account on the system that allows age discrimination in assignment of voting rights.  Therefore, the arguments that support the broader notion of political equality also support the narrower conception.

 

Are Equal Lotteries as Fair as Democracy?

Some have wondered whether the kind of argument put forward for democracy in this book couldn’t just as well support some system in which decisions were made by lotteries wherein each person had an equal chance to affect the outcome.[17]  The thought is that since the lottery treats people as equals, the fairness of democracy that results from its public realization of equality would hold of the lottery system as well.  There are a lot of different possibilities here but I think that all of them suffer from the same defect.  Let us look at some of the different possibilities first. 

            One system would give each person an equal chance to rule, say for a year or some other determined time.  In a large society like the United States each person would have a one out of about 100 million chance to rule.  If her number comes up, she would be a kind of queen for the year.  Let us call this the Equal Chance to Rule doctrine.  There could be a number of variations on this doctrine, for example a number of people might end up ruling as opposed to just one, but they are roughly the same.  Another variation on this doctrine would give each person the right to trade the chances before the lottery was put into effect.  We will discuss this more in what follows.  Another doctrine might require a system of point voting.  In such a system each person gets an equal vote in the decision-making, but the vote only gives that person a 1 out of a 100 million chance of making a difference.  On this doctrine, the system of voting would be very much like an ordinary system of voting except the outcome of the voting would not determine which alternative wins.  The outcome would be a kind of lottery in which the chances of an alternative for winning would be proportional to the number of votes it had received overall.  So the alternative that received 51% of the vote would now have a 51% chance of being selected.  We can imagine this system with or without a system of representation.  It could be used to choose representatives.  Representatives could use this method of voting to choose legislation.  And of course the population at large could use it in directly voting for legislation.

            Is there anything wrong with these systems of voting from the point of view of equality and therefore fairness?  They all seem to assign equal voting rights or something equal to everyone.  In my view they all fail to realize equality adequately.  Of course the worst one is the equal chance to rule doctrine but the point voting systems also fail in important ways.  What is the nature of this failure?

            We can see the failure of all these forms of lottery systems as systems of political equality if we think of the analogous case of substituting equal distribution of chances at material resources for equal distribution of resources.  In the normal case, when we think that a set of resources ought to be distributed equally among a group of persons, we think it is unfair to give each person a chance at those resources and then distributing everything to that person who turns up the lucky card.  For example, suppose that we could choose between paying three equally deserving workers the same wage or paying them with equal chances at all the wages.  And suppose that we chose the latter alternative and the consequence was that one of the workers got all the income.  Would this be fair?  Or more relevantly, would this be as fair as paying each the same wage?  I submit that this would not be as fair and that everyone will agree that this would not be as fair.  Equal lotteries would realize some kind of equality but the equality realized would be thinner than the equality realized by equal wages. 

            In effect, the lottery system of wages is a very thin form of equality because it contracts the reach of equality to just the initial lottery.  It eliminates equality at other stages.  For example, the equal wages arrangement gives people equal opportunities to engage in exchange with each other and with other people.  The equal lottery arrangement breaks off the equality at the moment of the lottery itself. 

            We could imagine, of course, a different lottery system in which people trade their chances for promises.  So I give my lottery ticket to one person, thereby increasing her chances of winning, in return for her promising me that she will do something for me if she wins.  This new system, which we could call Tradable Equal Chances at Wages, would get us closer to the equal wages scheme.  In fact, under the tradable equal chances we could end up with equal wages at the end if some person had made promises to everyone else that he would redistribute his lottery gains equally to everyone.  Presumably that would only happen if all had transferred their tradable chances to him.  In the absence of complete and unanimous transfer of chances even if everyone had transferred nearly all of their chances to him in exchange for promises of wages, there would still be a chance that everything would go to someone else who had not made any promises.  That would end the egalitarian distribution at the moment of the lottery itself.  The initial equality does not reach beyond the initial distribution in that case.  In the equal wages system the equality does reach beyond the initial distribution to affect subsequent distributions because people have capacities to negotiate and exchange with others and the outcomes of those negotiations and exchanges are determined by the initial distribution as well as the actions of the equal persons.

            In sum, if we simply distribute non-tradable chances to wages, then the reach of equality is very limited.  If we allow trading in chances of wages, the reach becomes greater and tradable chances is fairly close to equal wages; but there is always the chance that, through no decision on anyone’s part, the equality will end as a result of the lottery’s operation.  In this latter case, it looks as though the lottery system does not allow equality to determine the outcome while in the equal wages case, equality is determining the outcome of trades.  Hence, lottery equality is a very thin form of equality when compared to wage equality; it becomes closer to wage equality to the extent that we can trade in the chances but even here (except in the unusual case where all have traded away their chances to one person) chance still has the ability to determine outcomes in a way that seems to ignore equality.

            In general we have recourse to simple lotteries (lotteries without tradable chances) when we must dispose of a non-divisible good and where there cannot be any mutually advantageous negotiation over how that non-divisible good is used.  Lifeboat cases are like this.  If one person must be removed from a boat so that the rest may survive, and there is no negotiation possible that is mutually advantageous, then we have recourse to a lottery.   The simple lottery precludes mutually advantageous negotiation but since it cannot be engaged in anyway, it doesn’t matter.

            Now the equal chance to rule doctrine precludes a huge amount of negotiation and deliberation where it would otherwise be possible under an ordinary system of voting.  In an ordinary system of voting selecting who is to rule or represent the group is subject to a great deal of deliberation, negotiation and compromise.  These activities are highly advantageous to all the participants and the distribution of voting power and other kinds of power make this an egalitarian process.  What a system of ordinary voting does is extend the reach of equality into these areas of great importance, while the equal chance to rule contracts the reach of equality to a fairly small set of issues and it allows inequality or chance to rule the rest.

            One could respond to this by saying that in equal chance to rule, there will be a significant rotation of persons through the system of rule.  The likelihood is that different people will win the lottery each time.  This gives these people some kind of equality beyond the mere equal chances.  This observation is correct but it shows the weakness of the lottery system as a form of equality in a new way.  For in this rotating system of rule, the nature of the rotation is determined by chance and thus the agenda for decision-making, which is determined in significant part by the rotation, is determined by chance.  In an egalitarian system of decision-making one would want the agenda for decision-making to be determined in an egalitarian way as well since this is crucial to the outcome of decision-making.  Once again, the thinness of the lottery equality is exposed.

            In addition, once one person has won the lottery and not as a result of any kind of negotiation or compromise with others, the opportunities for negotiation and deliberation on the agenda for decision-making and on the exact character of the items to be decided on is nearly completely thrown away or put at the discretion of the ruler.  In an ordinary system of voting, in contrast, all of these issues would be subject to the negotiation and deliberations of the members.

We could try to amend the equal chance to rule in the same way we amended the equal chance at wages arrangement.  Give each person the opportunity to trade his chances for promises from the person to whom the chances are given.  This arrangement would suffer from the same defects as the equal tradable chances at wages.  It gets us closer to a genuine equality, but it still allows chance to come in and overturn all the negotiations and compromises made by the participants as long as there is at least one person who hasn’t traded away his chances.  Of course point voting does this less than the equal chance to rule.  But it does it to some extent.  The key feature of point voting is that it takes away from everyone the chance to be decisive.  No one and no group can ever hold in its hand the possibility of deciding the outcome given what everyone else has done.  The consequence of this is that it lessens the value of engaging in negotiation and in engaging in deliberation.  It leaves much more to chance while the system of ordinary voting extends the reach of equality into these areas. 

And it is in this way that the kind of equality realized by lotteries is thinner than the equality realized by a system of ordinary voting.  Extending the reach of equality in effect makes more of the activities involved subject to equality.  In that respect, it makes the process fairer to the participants.  And thus an egalitarian approach to collective decision-making must reject a lottery approach except in those cases where equality can reach no further anyway.

           

The Priority of Democracy

This argument establishes the intrinsic justice of democratic decision-making even though some of the premises rely on the effects of differences of power on different persons.  The intrinsic justice of democracy derives from the fact that the egalitarian standpoint must play a foundational in generating a conception of social justice and the idea that only democracy (and basic liberal rights, as we will see in a later chapter) can realize public equality in the light of the facts and interests described above. 

            Intuitively, if one dissents from an outcome that has been democratically chosen and one attempts to bring about another outcome by means of revolution or intrigue or manipulating the system, one is acting in such a way that cannot be thought of by others as treating them as equals.  One is putting one's judgment ahead of others' and in the light of the facts about judgment and the interests in respect for judgment, one is in effect expressing the superiority of one's interests over others.  

            Of course democracy only gives partial satisfaction to the principle of publicity.  In view of the disagreements that citizens have over what constitutes equality in the society, even when collective decisions are made in a way that take everyone's interests equally into consideration, the outcomes will be thought to be unjust and inegalitarian by many.  This follows from the fact that there is disagreement.  And this reveals the second dimension of the evaluation of democratic institutions.  Under these circumstances, the adherence to democratic decision-making constitutes a kind of touchstone in the public realization of the equality of citizens in the light of disagreement.  Democracy is the only way to resolve disagreement that remains faithful to public equality.  This is what makes democracy a uniquely just solution to political conflict and disagreement.  It is what ensures that democracy legitimates outcomes even when they are unjust in the eyes of some.  What democracy does (together with liberal rights and a minimum) is ensure public equality to the extent that it can be established in human societies.  And it is against the background of this public equality that further attempts to realize justice, which are not fully public, can be made legitimate. 

I want to look at the argument I have given from a slightly different angle.  I have asserted that democracy is necessary to justice and that decisions regarding law and policy that involve considerations of substantive justice must be made within the context of democracy.  And I have argued for this priority of democracy on the basis of the claim that from the standpoint of equality certain fundamental interests in having a say will stand out.  The remarks I make here will be greatly filled out in subsequent chapters but it is important to note them here because the issues will occur to some discerning readers.  This will also help make sense of some of the discussion of the next chapters.  The question is, why are these interests in judgment so important?  Why do they seem to out weigh in importance other interests?  Why aren’t the interests that are advanced and protected by the substance of law and policy, such as the interests in having one’s needs met, in health care and education or the interests in being loved, sometimes more weighty than the interests I have described here?  For democratic decision making to be so important, the considerations that ground it must have a certain overriding character so that it is proper to obey the democratic decision even when other interests seem to be against it.  I have a two-part answer to this question.  The first part will depend on the rest of the arguments of the book. 

I argue in some detail that the considerations that ground democracy also ground limits to democratic authority.  So for instance, the principle of public equality that grounds democracy grounds three other principles.  In chapter 5 I show that it grounds liberal rights to freedom of conscience, freedom of expression, freedom of association and freedom of private pursuits.  Parallel arguments to the ones I have provided here provide the grounds for these rights.  Second, in chapter (?) I will show that the principles that ground democracy also ground a requirement that each person be guaranteed a minimum set of resources sufficient to lead a decent life.  Third, I will show in chapter (?) that the principles that ground democracy also ground the requirement that there not be permanent minorities in the democracy.  The particular institutional solutions to permanent minorities may be federalist or secessionist institutions but there is a requirement that permanent minorities be provided relief from that position.  In chapter (?) I will go on to show that these are not merely considerations that weigh in against the democratic ones.  I argue that these considerations actually provide limits to democratic authority.  From this we can see that democratic societies do not always get what they want.  There are limits to democratic authority and I will show that those limits can be derived from the very considerations that ground the authority of democracy.

Still why do the considerations that ground democracy, liberal rights and the minimum stand out so much that they must be satisfied before virtually every other consideration comes into play?  The most basic reason is that for people to establish justice among themselves, they must do so according to their own best judgments.  When we consider the facts of fallibility, disagreement, diversity and cognitive bias and in general the imperfections of human beings as well as the interests people have in trying to come up with a conception of justice we must realize that the ultimate institutional question is, who has the authority to judge?  We cannot simply ask, is it just that this person is treated in this way?  We have to ask, who gets to make the decision?  And this is a question of how power is distributed and whose judgment has authority.  I may well think that the majority has made a poor decision in some circumstance not ruled out by the limits to democratic authority.  And it is my right to think this, express it and to try to change matters through the democratic process.  But if I think that I may change it regardless of what others think then I must have an argument that says something about why my judgment ought to be given more weight than that of others.  And it is here that the question of the interests behind each person having a say come into play.  If I were to change things regardless of what others think, I am in effect saying that my judgment on these matters is better than theirs in a way that is contradicted by all that I know about the limitations of people’s capacities for judgments.  I am in effect treating myself like a god or the others like children.  Since that is not the relationship between us and since they have the same interests in having their judgments respected as I do, I must respect their judgments.

If we were in a world like that of Plato’s Republic where there are people who have knowledge of all that pertains to justice and others do not or if we were in the situation described by Aristotle’s divine kingship, we would be right to give complete obedience to these people.   But, as Aristotle observed, we are not ever in this position.[18] Indeed, every time someone has asserted that they were in such a position, as in the totalitarian dictatorships of the last century, disaster has ensued for everyone involved.

Many are tempted to say that the interests in health care, education, and other such interests are weightier interests than the interests in having a say in how one’s society is arranged or in being able to express one’s views about these matters.  After all, what is the loss involved in a person’s not be able to say what he thinks or play a role in the formation of society?  It seems to be a small one.  But in fact, we can see that the loss is incalculable once we recognize the facts about judgment and the relations of judgment to our interests.  For a society to silence some dissenting group of persons or for it to deprive them of the right to organize and promote their views in order to influence the collective decision-making is for it to deprive itself of all that it can learn about itself and about those others.  How much is lost and exactly what is lost is not known, but it is highly likely that a great deal is and that the interests of many people will not be advanced as a consequence.[19] 

Admittedly the losses involved here are speculative while the loss we think we see to justice in a particular policy may seem very concrete.  But once we take into account the facts of judgment and the interests connected to judgment, we can see that though the exact losses are uncertain they are likely to be much greater in the long run.  And we can see that because the losses due to disenfranchisement are likely to be very unequally distributed, the deprivation of these rights for some is a deep violation of equality when we look at the matter from the egalitarian standpoint.

Of course, there may be some circumstances where the magnitude of the losses from making decisions democratically is greater than the losses from not making decisions democratically.  These will be few and far between but they could occur.  It is at this point that we must say that from the egalitarian standpoint, particular case by case balancing of interests must be ruled out.  The standpoint of equality demands, in addition to democracy and liberal rights and a clear minimum, the rule of law.  I will develop the case for the rule of law more in the chapter on liberal rights but the basic idea is that an egalitarian society must reject case by case reasoning in matters of basic justice in order to avoid the public violation of equality.  One longstanding guarantee of equality among citizens is that citizens are ruled by the same rules.  And the reason for this can be seen in the cognitive limitations.  If we are allowed to make new decisions about basic justice when new situations arise, there is a great danger that the individual decisions will be used to fit the interests of particular persons or groups in those circumstances.  Hence one of the most fundamental guarantees of equality among persons is that people are ruled by the same rules and principles and cannot change them just for their own individual cases. 

But in the case of democracy, this public guarantor of equality implies that we respect a principled priority of democracy and liberal rights and the minimum over other considerations even though we know that there will be a few situations in which that priority does not work for the best.

We are of course not all equally competent in assessing matters of justice but we are all subject to the same deficiencies in capacities for judgment.  We all fall into a range of competence such that it is very difficult to figure out who is more competent than whom, or so I shall argue in the next chapter.  This is a range that puts us all on a par with each other and that defeats claims to unilateral authority. 

Finally, I want to add a clarification to the argument I have made for democracy.  Though the argument does rely in part on the expressive power that giving democratic rights to individuals has, it is not primarily an argument from the expressive power of democracy or at least not solely from it.  The idea behind the argument is that democracy has power to express equality because of its actual realization of equality against the background of the facts of diversity, disagreement, fallibility and cognitive bias.  The arguments from the interests in correcting for cognitive bias and being at home in the world as well as the arguments from learning all proceed from the fact that democracy is a public way of realizing these interests in an egalitarian fashion.  Democracy does not merely express the equality of the members of society; it does it because it is a way of actually treating the members as equals.  And it is a way of treating the members as equals that is uniquely capable of being seen to be treating people as equals given the realities of human cognitive limitations.  Its symbolic significance derives from the fact that democracy is an egalitarian way of treating people.  And it is only because the symbolic importance is rooted in an actual equality that it has the significance that it does have. 

So the symbolic significance of democracy that is so important to my account cannot be replaced by public assertions that people are equals.  And this possibility of replacement of the institutions that express some truth with the bare saying of the truth has always seemed to me to be a weakness in these kinds of expressive views.  In contrast my use of the expressive importance of democracy relies on the fact that the egalitarian symbolism derives from the egalitarian reality of democracy.   This is why in most of the discussion, I prefer to use the phrases that democracy publicly embodies equality or publicly realizes equality instead of the expression that democracy publicly expresses the equality of all citizens even though the latter phrase is correct.  The egalitarian reality of democracy has egalitarian expressive power in itself and the inegalitarian reality of rejections of democracy seem to me to have deeply anti egalitarian expressive power. 

In sum, I have argued that we must adopt the egalitarian standpoint on the justification of principles of social justice when we attempt to establish justice among persons.  This is the standpoint we imperfect beings occupy when we are properly informed about our cognitive limitations and when attempt to take everyone’s interests into account.  From the egalitarian standpoint, democratic decision-making is the only way to make collective decisions that realizes the equality of persons against the background of the facts of judgment and the interests in judgment.  Hence, democracy is the unique public realization of equality in the context of collective decision-making.  We will see in what follows that liberal rights are also required by the public realization of equality and that these serve to define the limits of democratic authority.

 


[1] See his “Is Democracy Compatible with Justice?” The Journal of Political Philosophy and more recently his “The Disenfranchisement of the Elderly” Philosophy and Public Affairs.  See also Richard Arneson, “Democracy at National and Workplace Levels,” in The Idea of Democracy ed. David Copp, Jean Hampton and John Roemer (Cambridge: Cambridge University Press, 1993) and “Democracy is Not Intrinsically Just,” in Justice and Democracy ed. Keith Dowding, Robert Goodin and Carole Pateman (Cambridge: Cambridge University Press, 2004).  See also Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000) chapter 4 for a defense of an instrumentalist position.  It is not clear how this argument is consistent with his view stated in chapter 10.

[2]The view is attributed to Robert Bork, see his "Neutral Principles  and the Constitution,"   

[3]  This view seems to be expressed in Iris Young, Justice and the Politics of Difference and Benjamin Barber Strong Democracy.  Joshua Cohen has argued recently that the idea of democracy really comes down to the idea of collective authorization.  A set of arrangements is collectively authorized when free and equal citizens can reasonably agree to those arrangements.  Collective authorization, he argues, includes both the dimensions of procedure and substance.  For Cohen, this notion inevitably implies a commitment to a kind of consensus on both procedure and outcome.  Reasoned consensus is the fundamental norm in such an approach because it is the only way to ensure that individuals are treated as free and equal citizens when they must submit to the powers of a coercive state. See his "Substance and Procedure in Democracy," in Democracy and Difference ed. Seyla Benhabib (Princeton: Princeton University Press, 1996).

[4] Let us contrast this notion of publicity with Rawls’ notion.  Rawls states that a society satisfies a public conception of justice when, “everyone accepts and knows that the others accept the same principles of justice, and the basic institutions satisfy and are known to satisfy these principles.”[4]  This notion of publicity includes four separable conditions: 1) that everyone accepts the same principles; 2) that everyone knows that the others accept the same principles; 3) the basic institutions satisfy the principles; and 4) the basic institutions are known to satisfy the principles. In contrast to Rawls’s conception of publicity the idea I defend is a weak notion since it does not require agreement on principles of justice within a community.  Nor does it require that the basic institutions be known to be just by everyone.

[5] This principle is explicitly formulated for trials and legislation in John Bouvier, Bouvier’s Law Dictionary new edition by Francis Rawle (London: Sweet and Maxwell, 1898) vol. 2, pp. 793-94.  See also William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979) Book I [1765] p. 46.  The demand for the publication of the law was made in the early Roman Republic by the plebs against the patrician magistrates, who initially wanted to keep them secret.  See Barry Nicholas, An Introduction to Roman Law (Oxford: Oxford University Press, 1962), p. 15.

[6] In modern law, references to the principle that justice must be seen to be done, cite Lord Hewart, in Rex v. Sussex Justices ex parte McCarthy, 9 November 1923, who states that “a long line of cases shows that” this principle is “of fundamental importance.” See Law Reports King’s Bench Division (1924) vol. 1, p. 259.

[7] As Raz puts it, morality underdetermines the law, in his "On the Authority and Interpretation of Constitutions," in Constitutionalism: Philosophical Foundations ed. Larry Alexander (Cambridge: Cambridge University Press, 1998).

[8] Locke thinks that the relatively simple principles of justice that he defends must be publicly promulgated in settled and known law.  He does not go as far I do in saying that the state is a socially necessary institution for the establishment of justice.  See John Locke, Second Treatise on Civil Government (Indianapolis, IN: Hackett Publishers, 1990) chap. 7.  Kant thinks that there is an a priori connection between the state and justice that is made through the connection between justice and the general will and the connection between the general will and a unified coercive apparatus.  In a sense, my view is in between Kant’s a priori connection between state and justice and Locke’s idea that the connection is one of convenience.

[9] See G. A. Cohen, “Expensive Taste Rides Again,” in Dworkin and His Critics ed. Justine Burley (Oxford: Blackwell Publishers, 2004) pp. 3-29, esp. 18.

[10] See Michael Walzer, "Interpretation and Social Criticism," Tanner Lectures on Human Values VIII (Salt Lake City: University of Utah Press, 1988) p. 14.  Walzer overplays the significance of this consideration by turning it into the central idea of his political theory and he seems to thereby allow deeply unjust societies to be just.  A theory that takes the interests of individuals seriously can give it a modest significance for justice.  The ultimate source of this idea is G. W. F. Hegel’s The Philosophy of Right trans. T. M. Knox (Oxford: Oxford University Press, 1952) p. 24.  See Michael Hardimon, Hegel’s Social Philosophy: The Project of Reconciliation (Cambridge: Cambridge University Press, 1994) for a full discussion of this idea.

[11] See Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge MA: Harvard University Press, 2000), p. 204.

[12] See Dworkin, Sovereign Virtue, pp. 184-210, esp. for this argument p. 204-5.

[13] See Jeremy Waldron’s “A Right to Do Wrong,” in Liberal Rights (Oxford: Oxford University Press, 1990).

[14] See Will Kymlicka, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989) for an insightful discussion of this.

[15] See my The Rule of the Many (Boulder, CO: Westview Press, 1996) Parts 2 and 3 for discussions of the implications of a principle of equality for a conception of the nature of citizenship, legislative representation, political parties, interest groups and deliberative institutions in the context of the modern state.  See also my “Social Choice and Democracy,” in The Idea of Democracy ed. David Copp, Jean Hampton and John Roemer (Cambridge: Cambridge University Press, 1993) for a discussion of egalitarian voting rules.

[16]  “The Disenfranchisement of the Elderly,” p. 306.

[17] See David Estlund, “Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority,” in Deliberative Democracy ed. James Bohman and William Rehg (Cambridge, MA: MIT Press, 1998) for an argument to this effect.

[18] See Plato, The Republic trans. Desmond Lee (Harmondsworth, UK: Penguin Books, 1990) book five and Aristotle, Politics (Oxford: Oxford University Press, 2000) book three.

[19] One example of this kind of loss is laid out in great detail by Amartya Sen in his Development as Freedom (Cambridge, MA: Harvard University Press, 2001) pp. .  There he argues that democracy tends to advance the poor.  As an illustration, he argues that famines do not occur in democracies, while they do occur elsewhere, precisely because the interests of the poor are not represented.