Copyright (c) 1993 Texas Law Review
Texas Law Review
71 Tex. L. Rev. 1437
LENGTH: 24117 words
SYMPOSIUM: REGULATING THE ELECTORAL PROCESS: Who's Afraid of Deliberative
Democracy? On the Strategic/Deliberative Dichotomy in Recent Constitutional
David M. Estlund *
* Assistant Professor of Philosophy, Brown University. I have benefitted from
discussions of this material with Alon Harel, Christopher Morris, Lewis Yelin,
and the participants in the
Texas Law Review Symposium,
Regulating the Electoral Process, at The University of Texas School of Law, November 13-14, 1992, especially
... Deliberative democracy is an emerging ideal. ... The ambiguous political
valence of deliberative democracy is matched by the strategic conception's
presence on both the left and the right. ... This argument would, indeed,
count in favor of deliberative democracy if the contrast were fair, but
pluralism and the other main strategic conceptions of democracy are not so
morally nihilistic. ... If the category of deliberative democracy is to
exclude such accomplished exponents of instrumental and strategic reason as
Gauthier, then these stronger philosophical implications -- cognition,
epistemology, and truth -- cannot be avoided. ... Gauthier argues that
"the outcome of deliberative politics is
constitutive of justice among individuals" and
"the common good." There is no independent standard of justice or common good to which
constitutional deliberation aspires; the justice of the outcome is a fact
solely about the procedure that produced it. ... The mantle of deliberative
Rawls better than Gauthier for this reason. ... An Epistemic Proceduralism of the
kind I have sketched suggests that not only is this philosophically bolder
deliberative theory of democracy truer to the most useful
deliberative/strategic dichotomy, but eventually it may even be a viable theory
of democratic legitimacy. ...
[*1437] I. Introduction
Deliberative democracy is an emerging ideal. The phrase was apparently coined
n1 and it encompasses a cluster of views about politics that previously had long
been unfashionable. The fashionable views, increasingly called
"strategic" views of politics, characteristically applied doctrines or concepts developed
primarily in welfare economics to the actions of voters, political candidates,
interest groups, and others in order to explain, predict, or morally evaluate
n2 While much of that work has been done by economists and political scientists,
the deliberative conception of politics has taken root especially in the fields
of law and philosophy.
In law, the deliberativists tend to have distinctive theoretical conflicts with
practitioners (especially the early ones) of the thriving movement in law and
n3 In political philosophy, the deliberative theorists are
[*1438] characteristically at odds not only with the orthodoxy in the social sciences,
but also with those who conduct moral and political philosophy as an extension
of the ideas of economic rationality and efficiency.
n4 The deliberativists in political philosophy are also characteristically
opposed to moral utilitarianism,
n5 the influential view that morally ranks actions or policies according to their
tendency to produce the greatest sum of individual well-being.
n6 However, this may not go as deep as the other tendencies in the end: John
Stuart Mill, a founder -- along with Jeremy Bentham -- of modern
n7 had a conception of democratic politics that would be categorized as
deliberative by any sensible construal of the dichotomy.
n8 In both legal and political theory, then, deliberative democracy is associated
with a degree of opposition to the extension of classical economic methods and
concepts to the study of politics.
[*1439] There is no easy way to lump the deliberativists and the strategists into
comfortable positions on the traditional left/right political continuum.
Deliberative democracy's typical antipathy to laissez faire, or
n9 economic ideology in the study of politics tends to place it toward the left.
n10 Its frequent embrace of some version of
n11 and community values, however, tends to place it toward the right.
n12 The lesson is not that deliberative democracy is a centrist political
philosophy. In certain versions -- especially certain leftist versions -- it
has a clear noncentrist political valence.
n13 However, nothing prevents more rightist versions from emerging in the mold of
George Will's recent book.
The ambiguous political valence of deliberative democracy is matched by the
strategic conception's presence on both the left and the right.
Economics-oriented libertarians are not the only ones who conceive politics as
a regulated rivalry among interest groups. Left-leaning work on racial
polarization and voting rights reform often adopts the rhetoric, and perhaps
also the normative framework, of strategic theories of democratic legitimacy.
It is in this context that the deliberative/strategic dichotomy has come to
seem vulnerable. The dichotomy is most often drawn by theorists wishing to be
placed on the deliberative side of the line. As a result, the deliberative
side tends to get the better press, and even the better definition. In turn,
theorists who fail to recognize their own views in the
[*1440] unflattering accounts of strategic politics should be expected to don the
mantle of deliberative politics, much as everyone has eventually adopted the
well-regarded wardrobe of democracy itself over the last two centuries. A
guiding question in this essay is whether the dichotomy between deliberative
and strategic politics can be drawn so as to allow some self-respecting
theorists to embrace each label. Why is this desirable? My own theoretical
preferences would be well satisfied if everyone genuinely came to accept the
ideal of deliberative democracy; there is no intrinsic value in having real
partisans on each side. If this consensus is not forthcoming, though,
different views of politics ought to be clearly distinguished, and I believe
important differences can be captured by a well-drawn dichotomy between
deliberative and strategic politics.
The dichotomy between strategic and deliberative politics ought to begin by
defining strategic politics as a spare thing, driven solely or primarily by the
employment of instrumental rationality. Individuals are supposed to begin with
their diverse ends, desires, goals, or projects, and then to promote them as
effectively as possible.
n16 Strategy is a special case of instrumental rationality, namely the most
effective promotion of one's ends in light of the fact that the results of
one's choices will be partly determined by the choices made by other agents.
Strategy does not imply competition; whether instrumentally rational agents
will compete depends on whether one person's getting what she wants precludes
other individuals from getting what they want. Where several people all prefer
the same scarce goods, there will be competition. It is immediately clear,
then, that strategic behavior will require individual deliberation in the
employment of instrumental reason. Each individual will deliberate about which
means to choose, and sometimes such deliberation will lead to coordinating
actions with others to achieve greater benefit, and even to discussing with
others how best to coordinate, or to persuading others that they have mistaken
their interests by neglecting important information. Indeed, many actions may
be aimed solely at the good of others, or even at the common good, depending on
how highly these things rank in individuals' preferences. Individuals may
behave in selfish, insensitive ways, or they may not. They might behave,
instead, in cooperative, even apparently altruistic ways. It depends, for one
thing, on how much they value such things as the well-being or autonomy of
others for their own sake. An individual's behavior
[*1441] will also depend on how beneficial it is to act selfishly or insensitively, as
opposed to cooperatively or altruistically. If one's preferences are best
served either directly or indirectly by it, a purely strategic agent might
earnestly endeavor to support and comply with utterly egalitarian institutions
and practices. This is all possible through the spare employment of
instrumental reason in the face of other rational agents, that is, in the spare
strategic conception of politics.
How then to characterize
deliberative politics? It certainly will not sufficiently define the concept to say that,
unlike strategic politics, in deliberative politics there is
cooperation or the employment of
reason, or all three.
n17 Now it might be replied that while these things may be allowed as well by the
idea of strategic politics,
in practice the facts about scarcity and actual preferences show that purely strategic
politics would indeed consist of unbridled selfishness, competition, and
n18 But this claim is, of course, one of the more controversial propositions in
the history of social thought. It is very much a live issue today. It should
not be assumed without elaborate supporting argument that the distinction
between strategic and deliberative politics is the distinction between conflict
and cooperation, or between power and reason. These assertions are too close
to saying it is the very distinction between evil and good. Maybe one of them
leads, in actual fact, to more evil and less good than the other (a matter of
legitimate controversy), but this should be an issue about theories that are
first defined in other terms.
It is better, then, to identify the strategic conception of politics with the
insistence that the sole or predominant individual motives are those of
instrumental rationality. This strategic conception can be contrasted, then,
with all the other conceptions, those that give instrumental rationality
something less than a predominant role. Among the many nonstrategic
conceptions, how is the conception labelled deliberative democracy distinct?
Frank Michelman draws a distinction between two kinds of politics: deliberative
n19 David Gauthier puts Michelman's distinction
[*1442] to heavy use in his recent theory of the authority of the Constitution.
n20 It is important, then, to examine the strengths and weaknesses of Michelman's
distinction and Gauthier's particular use of it. According to Michelman,
deliberative politics is characterized by
"argumentative interchange among persons who recognize each other as equal in
authority" and as equally entitled to respect.
n21 Each person may be persuaded by reasons relating to the claims of others as
well as her own. A vote represents a
"pooling of judgments" on some question of public ordering.
n22 In contrast, strategic politics asks each participant to consider only her own
interests. The outcomes of strategic politics, Michelman says, represent
"not a collective judgment of reason but a vector sum in a field of forces."
n23 Apparently, votes, like other political acts, are used simply to promote
It is immediately clear which conception we should all favor. If these are the
choices, what decent person could oppose the deliberative conception in favor
of the strategic? The distinction is approximately between power and reason,
between the view that might makes right and the view that politics is a sincere
cooperative effort to promote the common good. Deliberative politics involves
"argumentative interchange" aimed
"in good faith" at
"reasonable answers" while strategic politics yields not
n25 If I have accurately drawn the implications of a politics based on
instrumental rationality, then we should expect any theorist to eschew
strategic politics in Michelman's sense, since it leaves no room for reason,
deliberation, or cooperation. Paradoxically, even a sophisticated
instrumental-rationality theorist may feel more at home, with everyone else, in
the deliberative camp, given Michelman's characterization of the choices.
Cass Sunstein, another leading legal academic advocate of deliberative
democracy, takes the main theoretical opponent to advocate
"reasons" in politics.
"pluralist" view of politics
n27 implies that might makes right.
n28 This argument would, indeed, count in favor of deliberative democracy if the
contrast were fair, but pluralism and the other main strategic conceptions of
democracy are not so morally nihilistic. If nondeliberative politics is
defined according to Sunstein as
"[m]ight makes right"
n29 or Michelman as the party of power (as opposed to the party of reason),
n30 then all major political views will count as deliberative and their important
differences will be missed. Sunstein uses one less tendentious formulation.
In deliberative democracy, laws and policies must be justified by
"public regarding reasons" and arguments.
n31 Is it a public-regarding reason for a law to say that a majority of adequately
informed citizens favor it? If so, it is difficult to think of a strategic
theorist who would deny the importance of public-regarding reasons. If not, on
In other places, Sunstein associates deliberative democracy with a tendency to
arrive at normative truths.
"[A] large point of the [constitutional] system is to ensure discussion and
debate . . . in a process through which reflection will encourage the emergence
of general truths."
n32 He approvingly cites James Madison's discussion of the system of national
representation as a mechanism with which to
"refine and enlarge the public views by passing them through the medium of a
chosen body of citizens, whose wisdom may discern the true interest of their
In what follows, I hope to turn back David Gauthier's recent attempts to
represent his own approach as deliberative, and to shore up the boundaries of
this category in the process. To do so, it will be useful to adopt Michelman's
judgment at the core of deliberative politics
n34 in a way that (so I will argue) puts the focus on cognitive, as distinct from
[*1444] narrowly practical, reason. Deliberative politics has no monopoly on reason,
but it does distinctively emphasize applying cognitive judgment, and therefore
cognitive reason, to moral and political questions. Cognition, epistemology,
and truth are all kindred concepts, and the fear they provoke in legal and
political theory swells the ranks of the strategic theorists.
n35 If the category of deliberative democracy is to exclude such accomplished
exponents of instrumental and strategic reason as Gauthier, then these stronger
philosophical implications -- cognition, epistemology, and truth -- cannot be
avoided. I hope to show that much of the fear is misplaced, both
philosophically and politically. There is a promising, though so far
undeveloped, conception of democracy as epistemic.
David Gauthier theorizes about how a constitution comes to be the privileged
embodiment of the popular will, and a law
"higher" than ordinary legislation.
n36 He argues that a constitution is a unanimous agreement about how to structure
interaction so that strategic behavior will not lead to outcomes that are worse
for all than other possible outcomes.
n37 The problem is that of Hobbes:
n38 pure strategic interaction where goods are limited will often lead to an
outcome that is inferior in a compelling sense, namely that there is another
possible condition that would be better for all (or at least better for some
and worse for none).
n39 The task is to devise a way for the participants to restructure their own
interaction to remove this feature. Hobbes thought they could yield all their
powers to a sovereign leader or state whose function it would be to make
certain individual actions costly enough that each will be steered, by
self-interest alone, to a collectively optimal outcome.
n40 Locke famously pointed out one among many problems with this suggestion: A
sovereign leader with unlimited powers is at least as great a threat to
individual security as the original state of nature is, though neither is very
n41 If Hobbes's solution fails,
[*1445] consider Gauthier's theory as a proposal to substitute a constitution for
How is it supposed to be an improvement? We know the ways in which the actual
Constitution is superior to a Hobbesian sovereign, such as the separation of
powers, the system of checks and balances, and the Bill of Rights,
n42 but that should be put aside for now. We first need to know whether any
constitution, and if so what kind, could be approved by Hobbesian individuals
seeking to escape the state of nature. The theory is supposed to explain the
authority of a constitution by reference to the way in which it was or would be
Gauthier suggests that he is broadening the horizons of traditional Hobbesian
subjects by making them
n43 Hobbesian individuals regard each other as a threat, and for good reason.
n44 Gauthier suggests that politics is impossible in such a case.
n45 Suppose each person recognizes the potential for cooperation (as well as the
potential threat) that other individuals represent. In this case there is the
possibility of a genuinely political good.
n46 It is unclear what is more
"political" about this case, or why this is a good thing, as he clearly suggests. That
aside, the suggestion is that this interest in achieving cooperation is a key
to the Hobbesian problem, a way out of mutually disadvantageous interaction.
It is notoriously difficult for Hobbesian individuals to achieve cooperation
because it is not clearly in anyone's interest to keep agreements to cooperate.
Each person has an interest in getting others to
"cooperate" but then taking the money and running. Each finds the other a convenient
n47 It is hard to see how real cooperation would be possible among such agents.
Gauthier has an elaborate theory, developed elsewhere, that it would be
rational for such agents to, in effect, change their character to that of a
n48 Not only that, but Gauthier believes this is the correct account of the nature
of morality: The dictates of morality are indirectly the dictates of rational
self-interest. One would do well to do good, and to stop caring so much about
doing well. The reason
[*1446] is that cheaters are more or less detectable and cannot be trusted. They are
left out of interactions from which they could have benefited even without
cheating, and so they do worse than if they had not been (and been seen to be)
n49 Under these conditions, morality, being an implication of instrumental reason,
is reconciled with reason. The theory is ingenious and, like any reasonably
rigorous philosophical theory of morality, highly controversial.
In his discussion of the contractarian roots of the authority of a
n51 Gauthier does not give any explanation of how cooperation is achieved.
Instead, he skips over, without comment, the problem of how agreements to
cooperate could be kept by self-interested agents. He simply assumes that they
could, and suggests that in time such
"bonds of convenience become ties of mutual civic concern."
"respect[s] the identity and aims of her fellows [and] willingly accord[s] them
equal place in their common affairs with her own."
It is likely that the preceding account of how cooperation by self-interested
agents is achieved borrows from the theory in
Morals By Agreement.
n54 There, Gauthier argues that a dimension of sociability can be
"rationally reconstruct[ed]" from his account of the rational basis of morality.
n55 A noninstrumental form of sociability exists in moral feelings themselves.
Just because the account of morality is limited to considerations of
instrumental rationality does not mean that moral feelings themselves must be
"In relating morality to the provision of benefits that themselves involve no
affective concern with others, we do not thereby impoverish the moral feelings
of persons who have such concern. It is because we can give morality a
rational basis that we can secure its affective hold."
n56 The constitutional deliberators apparently are individuals who are moral in
the ways implied by Gauthier's moral theory. Accordingly, they subscribe to
ideals of fairness and respect, and to this extent have a noninstrumental
social regard for their fellows.
[*1447] On this reading, the constitutional theory utterly depends on the success of
the moral theory. The traditional political problem about the cooperation of
self-interested agents is presumed to be solved at a prior moral level of
inquiry. That solution, ingenious and controversial, cannot be evaluated here.
n58 But suppose it succeeds. We are still left with no clear description or
derivation of the motivation of post-constitutional citizens, and no
explanation of why a constitution would be a necessary constraint. Let us
imagine, with Gauthier, that purely selfish individuals have transformed
themselves into people who value every other comrade's interest as highly as
their own. It is not clear what this means. It is clear that for Gauthier
such impartial motives are supposed to be present in the joint effort to devise
n59 By a
"constitution" Gauthier means a way
"to regulate their interaction to secure mutual benefit and express mutual
n60 But it is not clear what the problem is to which a constitution is a solution.
If individuals have been transformed into utterly impartial agents, the
Hobbesian problem of mutually disadvantageous interaction has been solved. Or,
at least, there is no argument that it or anything like it would still obtain.
n61 Unless Gauthier is assuming that the interactions of such individuals would
still produce mutually worse outcomes, there is no problem for a constitution
to solve. Gauthier is unclear about this issue:
"I have supposed that those who first see others as useful will, as they share a
wider range of activities, come to see those others as companionable, and will
seek ways to regulate their interaction to secure mutual benefit and express
mutual respect. These ways are embodied in their constitution."
The answer seems to be that impartiality does not come to characterize
interaction in general, but primarily characterizes the choice of a
constitution. However, the rest of interaction does not revert entirely to
strategic, purely self-interested behavior, since it now willingly conforms
itself to the dictates of the constitution. But within those constraints,
interaction remains strategic or self-interested:
"[I]n . . . constitutional politics, human
[*1448] beings seek, through an appropriately conditioned strategic interaction, to
direct and constrain their future interaction, which they anticipate to be
largely strategic. They seek to remedy the failure of strategic interaction to
yield outcomes affording fair mutual advantage."
It was obscure from the beginning how the transformation from selfishness to
impartiality would come about. We simply imagined that cooperation was
possible and then swallowed the psychological speculation that relations of
convenience would, in time, produce a profound mutual respect leading to
impartial concern of each for each. It now emerges that this (unspecified)
psychological process leads individuals from relations of convenience to a
willingness to regard all with utter impartiality in the choice of a
constitution, but then largely to ignore any interests but one's own in all
other interaction, except to confine one's actions to the dictates of
constitutionally valid law. If morality is already being assumed, and it
affords us the further assumption that each person regards everyone's interests
impartially, then what warrants the conclusion that post-constitutional
politics is largely strategic? Of course, post-constitutional politics is
assumed to confine itself to the law as authorized by the constitution.
Perhaps it is also assumed to confine itself to the dictates of morality, and
then, within these combined constraints, to be strategically aimed at
maximizing self-interest. It is unlikely that post-constitutional behavior is
thought of as
amoral apart from its fidelity to constitutionally authorized law; there would be
nothing to warrant this assumption, and it would apparently be incompatible
with the recommendations of the moral theory.
n64 But with such robust constraints on maximizing behavior, it is not clear why
further constitutional regulation would be required to avoid the inefficiencies
of naked strategy.
Although Gauthier gives no reason to accept this complicated set of
psychological premises, he hopes to ground the authority of the constitution on
the fact that it would be agreed to by individuals who, out of enlightened
self-interest, come to value everyone's interests equally. According to
Gauthier, this is more than can be said for ordinary legislation, and that is
"higher" about constitutional law.
III. Judgments and Independent Standards
Gauthier, the leading philosophical exponent of the sufficiency of instrumental
reason in moral and political theory, opts for deliberative
[*1449] politics in Michelman's sense. Gauthier's conception of politics is not
deliberative outside of the choice of a constitution. It is strategic, within
the law as authorized by the constitution, in the rest of politics. Voting
will conform to Michelman's description of voting in purely strategic politics.
n66 Public political discussion, except when it concerns constitutional questions,
will conform to the strategic model with the qualification that it will be
conducted within the law. Ordinary politics is explicitly assumed not to be
"If we were confident that these day-to-day decisions were themselves
deliberatively reached, we should have no need of
n67 Nevertheless, Gauthier claims that his account of
constitutional politics is deliberative by Michelman's standards. He quotes and claims to
"Michelman's characterization: 'a reasoned interchange among persons who
recognize each other as equal in authority and entitlement to respect, jointly
directed towards answering some question of public ordering.'"
It is true that the characters that populate Gauthier's constitutional
convention conduct themselves in distinctively unstrategic ways, if only
because each gives equal weight to everyone's interests. Gauthier's
constitutional designers are not constrained by justice or the common good.
Rather, they give content to these ideas in their choice of a constitution.
Gauthier argues that
"the outcome of deliberative politics is
constitutive of justice among individuals" and
"the common good."
n69 There is no independent standard of justice or common good to which
constitutional deliberation aspires; the justice of the outcome is a fact
solely about the procedure that produced it.
n70 Is this sort of constitutive account compatible with the idea of deliberative
politics? By insisting that justice and the common good are constituted by the
constitutional deliberations, Gauthier makes it clear that there is no room for
judgments about justice or the common good within the deliberations. This
point does not depend on the claim, defended below,
n71 that the idea of cognitive judgment involves objective standards. There is a
logical breakdown of a sort if justice or the common good is held to be
constituted by judgments about them. In general, the correct answer to a
question cannot coherently be constituted by judgments as to the answer.
[*1450] Michelman says that in deliberative politics a vote represents a
"pooling of judgments."
n73 This assertion might be read as ruling out a politics that answers to no
independent standard, a constitutivist view like Gauthier's. The use of the
idea of judgments clears up an ambiguity involved in placing reason at the
center of deliberative politics. Reasons can be reasons for choices, and some
reasons for choices, those within
"instrumental reason," are simple facts about the agent's ends and the means to achieving them.
n74 Reason, in that sense, is not foreign to strategic politics. Many
philosophers also believe there are other reasons for choices, and many locate
moral reasons here.
n75 Besides reasons for choices, there is another sense of reason, namely reasons
to judge or believe that something is so. Philosophers sometimes call this the
distinction between practical and theoretical reason,
"theoretical" is not well chosen to reflect the contrast. We might speak of reason in the
practical versus the cognitive sense.
n77 It is not that there cannot be practical reasons to believe something; it is
that practical reasons are not in general also cognitive reasons to believe.
The same fact could be both a cognitive and a practical reason. For example,
if God tells me I will be damned if I lose faith, I have both a practical and a
cognitive reason to believe. Practical for obvious reasons; cognitive, because
if He tells me this, He must exist.
n78 Michelman apparently means to characterize deliberative politics partly by the
central importance it affords to cognitive reason, an importance not afforded
in strategic politics.
Unfortunately, the matter is complicated by a similar ambiguity in
"judgment." We can form the judgment that capitalism is declining, and judgment in that
sense will be true or false. But sometimes a judge makes
[*1451] a judgment that someone shall be fined, or that someone shall have the legal
status of guilty or not guilty. This type of judgment is not judgment in the
cognitive sense, but in what I shall call the
"performative" sense. Performative judgment does not admit of truth or falsity. Rather, to
judge in the performative sense is to act so as to fix or determine the
situation in certain respects. One might act this way based on beliefs or
cognitive judgments that could be true or false. The act of performative
judging, though, is not itself true or false.
When Michelman speaks of pooling judgments he means judgment in the cognitive
sense, not the performative sense. He means judgments that something is the
case. Cognitive judgment on any topic involves the assumption that there is an
objective standard. In judging that things are a certain way and not some
other way, one presupposes that there is a way things are. Cognitive judgments
may be inappropriate in certain contexts precisely because there are not facts
of the matter (for example, whether Armstrong is better than Ellington), but
that would not affect the point. If one holds that cognitive judgment is
appropriate to deliberative politics, as Michelman appears to, then one thereby
presupposes that there are objective standards of truth or correctness that
apply to them. Objectivity is sometimes used in an imposing way, as entailing
some or all of universality, necessity, timelessness, or independence.
"objective" all we mean here is a standard by which individual judgments and the
associated political outcomes could be mistaken. Michelman apparently holds
that deliberative politics is distinctive in involving cognitive reason in a
way strategic politics does not. If this reading of Michelman is correct,
deliberative politics must involve the use of cognitive reason -- judgments
that can be true or false.
The philosophical school known as pragmatism rejects many of the stronger
metaphysical associations of the idea of truth. It has had some influence in
n81 and perhaps Michelman is thinking of it. Still, William James, a founding
n82 even allows that
"truth supposes a standard outside of the thinker."
Gauthier reads Michelman entirely differently. Michelman says that
"[t]he deliberative attitude [does not] presuppose the existence of an
[*1452] objectively best answer."
n84 Gauthier apparently misinterprets this point. He notes that in Michelman's
"[a] deliberative politics is characterized procedurally," as a certain kind of
n85 He concludes, fallaciously, that in general a deliberative politics in
Michelman's sense is incompatible with the assumption of independent standards:
"The appropriateness of the answers it yields . . . is established, not by any
appeal to assumed expertise, but by the assurance that the manner in which it
is conducted is informed by the standards that the answer must satisfy."
n86 Michelman says nothing in the article cited by Gauthier to suggest this view.
In a separate article, Michelman is clearer. He says,
"It is true that notions of deliberative politics
may be framed as presupposing the existence of objectively discoverable,
transcendently right or best answers," but they
"need not" do so.
Michelman is in danger of making the inconsistent assertions that there need
not be procedure-independent standards and that voting in deliberative politics
"pooling of judgments." If judgments answer to no independent standard, then they are not judgments in
the cognitive sense. Since performative judgments do not fit here, what kind
of judgments are they?
n88 Many people think democratic inputs are mere expressions of preference, not
judgments at all.
n89 They, of course, can consistently say that such inputs answer to no
independent standard. Indeed the fact that the preference model enables one to
avoid the need for independent standards is one of its main attractions for
n90 But Michelman's
[*1453] conception of deliberative politics is designed to contrast with that view by
concentrating on judgments instead of preferences, thus making it hard to see
how independent standards can be avoided.
I shall call a theory that allows justice or the common good to be constituted
by political inputs
constitutivist, and call all nonconstitutivist theories that nonetheless admit such things as
justice or common good
n91 Among objectivist theories, some will see certain political inputs as
cognitively addressing questions of justice or common good (for example,
judging of them); I shall refer to these theories as
cognitivist (and the remainder as
noncognitivist). One could deny constitutivism without being a cognitivist. Cognitivism as
employed here implies objectivism, but objectivism does not imply cognitivism.
n92 Despite his remark that no objectively best answer is presupposed, Michelman's
category of deliberative politics should not be read as simultaneously, and
untenably, allowing constitutivist theories but allowing only cognitivist
theories. Constitutivist theories cannot coherently be cognitivist.
While Gauthier's theory cannot recognize independent standards of justice or
common good prior to the choice of a constitution, nevertheless such a choice
does answer to independent standards in a way. This lets his foot back in the
deliberative door, but it also finally keeps him from getting through.
IV. Is Gauthier's Theory Genuinely Deliberative?
Under Gauthier's theory, parties to a constitutional convention deliberate and
then unanimously agree to a set of institutions. In deliberating, they do not
ask themselves what is just or what is to the common good, but what they choose
count as justice and the common good. They ask themselves what institutions will
avoid the characteristic inefficiencies of unfettered strategic interaction.
The deliberators are allowed to assume that ordinary (nonconstitutional)
interactions will be largely strategic, but limited by whatever constitutional
constraints are chosen.
It is fruitful to ask whether cognitive deliberation turns out to be entirely
beside the point on this view. It is already clear that outside the choice
(and amendment and interpretation) of a constitution, Gauthier's politics are
largely strategic, though constrained by the law. The question
[*1454] here is whether there is anything essentially deliberative about this theory
of a constitution's authority.
Suppose, to oversimplify for a moment, Gauthier's theory placed the authority
of the constitution in the hypothetical fact that if agents of a certain kind
were situated in a certain way they would unanimously agree on a constitution
of a certain kind. It is possible to show, first, that if his theory took this
form, deliberation would be utterly irrelevant to the account in light of
certain of its other features. The point will not just be that hypothetical
deliberation does not count as deliberation; rather, such an account would not
essentially involve even hypothetical deliberation. Second, while Gauthier's
theory is explicitly not hypothetical in quite this way, its difference is not
sufficient to incorporate deliberation in an essential way. I begin with the
simplified, hypothetical interpretation of the authoritative constitutional
If the hypothetical fact about a certain kind of deliberation is what
authorizes the actual constitution on Gauthier's view, then we should ask
whether an equivalent justification could be given without any mention of
deliberation or discussion. What I mean by an equivalent justification is
sufficiently clear in the following, simpler example. The following two
statements are equivalent in the pertinent respects even though one mentions
agreement and deliberation and the other does not:
Statement 1. -- The
best building is whichever building would be unanimously agreed, after
deliberation, to be
tallest by deliberators situated so as to have only accurate views about tallness, and
having full information about all buildings.
Statement 2. -- The
best building is whichever building is
The mention of agreement and deliberation in a hypothetical agreement situation
is not always removable in this way. Consider:
Statement 3. -- What is just is whatever would be agreed to after deliberation by
individuals with different motives and preferences.
"agreed to after deliberation," there is apparently no other salient property of the outcomes of such an
agreement -- like tallness in the first two statements -- that would allow an
equivalent statement of the principle. The kind of
"removability" of agreement and deliberation in question, then, does not derive simply from
the hypothetical form of an account.
Reading Gauthier's condition as hypothetical for now, we can see that the
"deliberators" would be addressing a question whose correct answer is independent of their
deliberations, and they are assumed to have
n94 The question they address is this: Which
[*1455] institutional arrangement (if normatively accepted and coercively enforced)
will avoid the inefficiencies that would be produced by unfettered strategic
individual behavior? The answer is independent of their deliberations. They
would consider the effects of each alternative set of institutions, and reject
all those for which there is another institution that is better for all (or
better for some and worse for none). They ask, that is, which arrangements are
in the Pareto optimal set, and choose one of them (if there is more than one).
Since the deliberators are assumed to have full information of the kind
necessary to correctly answer the question about Pareto efficiency, the
hypothetical deliberative formulation and a formulation that removes any
mention of agreement or deliberation are equivalent:
Statement 4. -- Justice is whatever set of institutions
would be unanimously agreed, after deliberation by fully informed deliberators, to lead to more efficient outcomes than the
results of unfettered strategic activity, or other available institutional
Statement 5. -- Justice is whatever set of institutions
would lead to more efficient outcomes than the results of unfettered strategic activity,
or other available institutional arrangements.
If the theory were entirely hypothetical in this way, then agreement and
deliberation would be entirely removable from the account. Some readers will
notice the similarity to a familiar point about the removability of agreement
and deliberation in
n95 We will look at
Rawls in this connection below.
A theory of democracy is not essentially deliberative unless it makes essential
reference to processes of interpersonal deliberation. Gauthier's account of
political justice violates this criterion since it would not be significantly
changed if the hypothetical deliberative procedure were replaced by some
nondeliberative procedure that was also a perfect efficiency detector. For
example, consider a formulation that says justice is whatever would be printed
out by a computer programmed to calculate the Pareto efficient options.
Because the procedure infallibly returns the answer that is correct by a
procedure-independent standard (a
"perfect" procedure in
Rawls's influential terminology),
n97 any perfect procedure with regard to that standard will always return the same
answer as Gauthier's hypothetical deliberative procedure. If the theory were
[*1456] reformulated in any such way, it would be equivalent, in its results, to
Gauthier's own formulation. Such theories would all call the same outcomes
just or unjust; they would be coextensive in this respect.
Suppose Gauthier replied that two theories that are coextensive, giving the
same verdict in all cases, may yet be importantly different. After all, an
arrangement's being efficient and its being correctly chosen as efficient are
two different things. If this reply refers to an arrangement's
actually being correctly chosen as efficient, it is surely a different thing from that
arrangement's being efficient. But this idea is easily seen by noting that
those two ideas are
not coextensive. Some efficient arrangements will not be correctly chosen as
efficient. However, if we choose truly coextensive properties -- (a) an
arrangement's being efficient, and (b) an arrangement's being such that a
hypothetical procedure that is perfect with regard to efficiency would choose
it -- it is not clear that these are two different things. The two
characterizations are certainly different in meaning in obvious respects -- as
only one of them mentions agreement, for example. Still, it is not clear that
they characterize different properties of arrangements because not only do they
always agree in fact, but it is impossible for them to diverge under
any possible circumstances. This is what I mean by saying they are not essentially
Suppose Gauthier were to exploit the acknowledged difference in meaning between
the two characterizations -- the one that mentions deliberation and the one
that does not. The characterization that mentions a deliberative agreement
among hypothetical individuals may not pick out a different property from
characterizations that do not, but it brings out the moral significance of the
single property captured by both characterizations. We can see how this
property might plausibly be identified with the undoubtedly moral concept of
justice by seeing how it can be characterized in terms of a certain kind of
hypothetical rational agreement. Think of it this way: It is very natural to
see a close connection between justice and what would be voluntarily chosen by
all the fully informed individuals who would be affected. Because we are
dealing with a hypothetical case, there are no genuinely voluntary choices, and
the closest we can come is to substitute rational and fully informed choices.
The claim that this hypothetical rational agreement is the closest we can come
to voluntary choices requires some thought.
Rawls proposes a hypothetical choice situation in which the parties are rational
but, crucially, not fully informed because they are kept from knowing, and thus
[*1457] particular information about themselves or others.
Rawls argues that certain considerations are
"arbitrary from a moral point of view,"
n100 and ought not to influence the outcome of a hypothetical choice designed to
capture and clarify our convictions about justice. Gauthier never argues that
this is not
"getting closer" to the idea of justice as voluntary acceptance than his fully informed choice
situation. Indeed, his primary methodological difference with
Rawls is not that
Rawls's choice situation is less morally plausible, but that it is less morally
innocent -- it already needs to assume crucial moral convictions
n101 in order to weave the
"veil of ignorance,"
n102 whereas Gauthier hopes to derive moral convictions from the purely nonmoral
apparatus of instrumentally rational choice.
n103 It is almost certain that a theory without Gauthier's harsh constraints could
get closer to the voluntariness conception of justice. For example, consider
the view that what is just is what would be agreed to by fully informed and
rational persons in light of all their knowledge,
including their moral convictions (other than those specifically about justice). This
is closer to the idea of a voluntary choice than either Gauthier's or
Rawls's scheme, whatever its defects may be. By including a person's considered moral
convictions, surely we would get closer to the idea of that person's voluntary
choice, but Gauthier does not allow it. One needs antecedently to accept his
more radical reductionist program before there is reason to accept the idea
that rational fully informed agreement is as close as we can get to the idea of
justice as voluntary agreement.
To sharpen this point, we should ask in what respects the Gauthier agreement
situation really brings out moral aspects of Pareto efficiency by seeing how it
could be the object of a rational fully informed agreement in certain
circumstances. Is this method in general a way of exposing an idea's moral
aspects? If we can do this for Pareto efficiency, can we do it for other
principles as well? We bring out the moral aspects of some principle
p by showing how it could be deliberatively agreed to in a perfect p-detecting
procedure. Does this work for the principle of, say, maximal entertainment
value? Assume justice is whatever maximizes entertainment value. We imagine
hypothetical individuals who are fully informed and motivated in the ways
required to infallibly determine which social policies will maximize
entertainment value. Next we note that certain policies would be
deliberatively agreed to by individuals in this hypothetical choice situation.
To do this analysis, of course, we would have to give the parties
[*1458] different motives from those assumed by Gauthier. Then, compare the
conclusions in the following statements, where the latter utilizes a
formulation that leaves out deliberation and agreement:
Statement 6. -- Justice is whatever hypothetical individuals would deliberatively agree
maximizes entertainment value.
Statement 7. -- Justice is whatever would produce the greatest sum of entertainment.
It is clear that in this example the deliberative formulation utterly fails to
bring out any moral aspect of the principle that might have been suppressed in
the nondeliberative formulation.
This fanciful analogy may seem to ignore the possibility that the moral
significance of Gauthier's formulation does not lie solely in the ideas of
deliberation and agreement, but also in the assumptions about the parties'
motives. In particular, at Gauthier's constitutional choice stage we are to
assume (as we have seen)
n104 that the participants are impartial as among their own utility and that of
anyone else, as they are already moral individuals. Still, the fact that
something would be agreed to even by moral individuals does not in general
establish any moral significance of the thing chosen. Moral individuals can
agree on morally indifferent as well as morally significant things.
The question here is not whether Pareto efficiency is in fact a morally
n105 but whether, among a number of necessarily co-extensive characterizations of
the standard, one that links it to the ideas of deliberation and agreement
thereby captures any moral significance in the standard. If so, my charge that
the theory is not essentially deliberative could be rebutted. As things stand,
however, this reply appears not to succeed. Gauthier's theory is not
essentially deliberative because its import is just as well captured by the
nondeliberative standard of Pareto efficiency as it is by the idea of a Pareto
efficiency-detecting deliberative agreement.
This argument for excluding Gauthier's theory from the deliberative category
depends on the assumption that the kind of deliberation that is central to that
category is cognitive deliberation, as I have recommended.
n106 If merely instrumental, noncognitive reason or deliberation were enough, then
Gauthier's theory arguably would count as essentially
[*1459] deliberative. The reason is that Gauthier's idea of an appropriate
constitution is one that allows for ordinary interaction to be largely
strategic without falling into characteristic Pareto inefficiencies. The
account essentially involves strategic behavior, which intrinsically involves
instrumental reasoning -- a noncognitive kind of deliberation. This type of
deliberation is noncognitive in that its conclusions are not beliefs or
propositions -- the kinds of things that can be true or false. Instrumental
reasoning concludes in intentions or actions. If a theory like Gauthier's is
not usefully categorized as deliberative, our emphasis on cognitive
deliberation can help to explain why.
So far, we have oversimplified by supposing Gauthier's standard for an
appropriate constitution to be entirely hypothetical, that it
would be chosen under certain circumstances. Gauthier's theory is, in fact,
explicitly not hypothetical:
"My account of the adoption of a constitution . . . does not treat it as merely
hypothetical. The constitutional fact plays a key role in the argument."
n107 However, the actual constitutional choice situation has its authority only
"as a reasonable approximation" of the ideal constitutional choice situation.
n108 Indeed, he says it is enough if some actual agreement may
"be seen as making possible an interchange . . . the
outcome of which might approximate to the outcome of a fair universal interchange."
n109 It is not enough that an actual constitution accords with what
(hypothetically) would have been agreed to in the ideal constitutional choice
situation; it must also have been the actual product of some agreement that
"represents itself as the expression of the people's will."
The requirement of an actual agreement is not sufficient, however, to bring
deliberation back into the account. The required actual event need not have
the sort of deliberative nature that would give it any moral authority. It
must merely intend -- or pretend -- to be deliberative in that way. The main
justification of a constitution stems from the hypothetical question of whether
would have been agreed to in Gauthier's
ideal constitutional choice situation. As we have seen, however, deliberation plays
[*1460] no essential role in that question.
n111 Deliberation plays no essential role -- really or ideally -- in this account
of the authority of the constitution. The central justifying device is the
economic idea of efficiency. A constitution is justified, for the most part,
according to whether under it largely strategic interaction will be more
efficient than if it were unregulated. To the same extent, then, because
Gauthier identifies such a constitution with justice and the common good,
n112 these, too, are largely matters of efficiency in the economic sense.
It would be a mistake to think that Gauthier's theory is, after all,
objectivist rather than constitutivist as these terms have been defined here,
n114 though the preceding analysis may seem to suggest such a characterization.
Gauthier's ideal or actual constitutional choosers do indeed face the
objective, procedure-independent question:
"What arrangements are Pareto efficient?" They do not, however, face an objective, procedure-independent question about
justice; their decision constitutes the justice of the chosen arrangement on
n115 His theory is constitutivist about justice despite its virtual identification
of justice with the procedure-independent standard of Pareto efficiency.
V. Why Do Deliberative Theorists Like Rawlsian Justice?
If deliberation and agreement are removable from Gauthier's theory without
essential change, then they are similarly removable from
Rawls's theory in
A Theory of Justice. This similarity is notable because exponents of deliberative democracy are
typically sympathetic to, even motivated by, Rawlsian theory.
n116 Such a sympathy cannot be owing to any deliberative theory of politics in that
book, because there is none. Before considering the significance of
Rawls for deliberative theories of democracy, it is important to see how
deliberation is removable from his theory of both justice and of a justified
First, it has long been noticed, most notably by
[*1461] that his explication of justice by reference to deliberation and agreement in
"original position" is equivalent in its consequences to a formulation that makes no reference to
agreement or deliberation. The following two statements are equivalent in this
Statement 8. -- A just basic structure is whichever would be unanimously
agreed to, after deliberation,
by individuals who are motivated by self-interest
n119 but who know no more about themselves (or each other) than that they would
prefer more rather than less of certain
n120 such as wealth and power.
Statement 9. -- A just basic structure is whichever would be
chosen by a single self-interested individual who knows no more about herself than that she would prefer more rather than
less of certain
"primary goods" such as wealth and power.
Deliberation and agreement are removable from the account without essential
change. This point is of some interest in a theory that attempts to explain
social justice in terms of a contract, as do the theories of both
Rawls and Gauthier.
Rawls's theory of a justified constitution goes slightly beyond the general theory of
a just basic structure, but it still does not involve deliberation in any
essential way. He says,
"A just constitution is defined as a constitution that would be agreed upon by
rational delegates in a constitutional convention who are guided by the two
principles of justice [agreed to in the original position]. When we justify a
constitution, we present considerations to show that it would be adopted under
n122 The delegates to such an imaginary convention are still behind a
"veil of ignorance,"
n123 but a thinner one because they now know the principles of justice they are to
follow, as well as certain general information about their society. As in the
original position, however, there
[*1462] is no reason to think the conclusions of one delegate would differ from those
of any other.
"[T]hey are to choose the most effective just constitution, the constitution
that satisfies the principles of justice and is best calculated to lead to just
and effective legislation."
n124 As in Gauthier's ideal constitutional choice situation, the delegates are to
address a specific question whose answer is independent of their decision, and
they are assumed to be sufficiently informed to answer the question correctly.
Roughly, Gauthier's delegates answer the question,
"What arrangements are efficient?" and
Rawls's answer the question,
"What arrangements are most just?" In both cases, the issue of deliberators correctly answering the question is
removable. A legitimate constitution is, roughly, the most efficient or the
most just, respectively. Deliberation and agreement play no essential role in
Rawls's theory of a justified constitution any more than in Gauthier's theory.
When we move from the constitutional to the legislative arena, we find an
irremovable deliberative component in
n125 The mantle of deliberative democracy fits
Rawls better than Gauthier for this reason. A close look, however, suggests that
Rawls has no deliberative normative theory of
actual politics; deliberation only figures essentially in his account of the
ideal legislature. Even in ideal circumstances, because
"rational legislators would often reach different conclusions, there is a
necessity for a vote. . . . The restrictions on information will not guarantee
agreement, since the tendencies of the general social facts will often be
ambiguous and difficult to assess."
n126 For these same reasons, even at the ideal level
"the effects of common deliberation seem bound to improve matters."
n127 To justify legislation is partly to show that a majority of such ideal
legislators would approve it after deliberation,
n128 and partly to show that it was actually chosen by procedures that would have
been unanimously approved in an ideal constitutional convention.
n129 Even if the first part cannot be shown, the second part is often sufficient
for the legitimacy of even unjust legislation.
What we do not find in
Rawls is any account of the legitimacy of actual legislative practices in terms of
their deliberative nature. Nor is
[*1463] citizen voting justified as a part of a deliberative process for ascertaining
just policies, as we might have expected. Instead, voting by actual
legislators is defended as a concession required by each delegate to the
constitutional convention in order to achieve agreement.
n131 Voting by actual citizens is defended, and circumscribed, primarily by an
appeal to individual liberty.
Why, then, do deliberative democrats consistently take inspiration from
Rawlsian theory? A good reason, and a possible explanation, is that
Rawls's theory of justice, unlike Gauthier's,
n133 supplies a standard for the evaluation of political practice that is
independent of actual political choice procedures.
n134 With such a standard in hand, it would be possible to conceive of a politics
that is not limited to individual instrumental reason and strategy. There
would be cognitive reasons with which to evaluate political proposals. There
would be such things as getting it right and getting it wrong. If, as I have
suggested, what is distinctive about a deliberative conception of politics is
that it gives a central place to cognitive reason and judgment,
Rawls's theory is an example of how there might be independent standards of the
correctness of democratic political decisions. The theory's appeal is not only
that it would provide an independent standard, but also that the standard would
not be too independent. It does not purport to be prior to or independent of
our faculties of reason,
n136 or even to have timeless or universal application.
n137 In these ways, it would differ from Platonic forms, God's Law, and Natural
Law. Despite being less exalted in these ways, the idea of an independent
standard of correctness or truth of political judgments and decisions may
provoke a number of concerns.
VI. Afraid of Truth?
Wariness about the existence of procedure-independent standards of justice or
common good may be traced partly to the fact that if such standards exist then
the business of politics must be to ascertain and then to
[*1464] meet them. This epistemic dimension of justice raises the specter of
n138 and of rule by the wise, and it is not comforting to advocates of democracy.
n139 This line of worry, however, must be scrutinized. The concern that rule by
the wise is necessary to uncover procedure independent standards of justice
depends on premises that we need not accept. In particular, it supposes that
if there is a procedure-independent (objective) standard of justice or common
good and some are relatively expert at knowing and meeting that standard, then
these relative experts are legitimate political leaders. If this inference is
faulty, as it apparently is, it is no longer clear how independent standards
would be a threat to democracy. Different people will criticize the inference
at different points.
n140 My own view is that its central flaw is its failure to recognize one liberal
criterion of political legitimacy: A political regime is not legitimate unless
it can be defended in a way that is beyond reasonable objection.
n141 If we adopt this liberal standard, then the inferential link between
independent standards and authoritarianism only holds if we suppose that the
experts' status as knowers is not only actual but also beyond reasonable doubt.
Since the expertise in question specifically concerns justice and the common
good, there is not likely to be any method for identifying such experts that is
itself beyond reasonable doubt. We can grant the existence of independent
standards, and even sharply different abilities to know them, and still deny
the authoritarian conclusion. Therefore, it is not clear why independent
standards should threaten our liberal or democratic sensibilities.
n142 Of course, this analysis does not yet specify what role these standards would
play in a theory that admitted them. I will discuss that in greater detail
Authoritarianism is not the only thing one might fear in the idea of
procedure-independent standards of justice or common good. Another line of
worry is not political but philosophical: The idea of procedure-independent
[*1465] truths smacks of a mysterious Platonic realm of universal, necessary,
timeless, and independent moral and political facts to which moral and
political judgments correspond when true. And isn't this a repudiated
I do not know whether such a view should be regarded as repudiated. In any
case, it is not implied here. The objection assumes more than it needs to
about what the idea of independent standards, or even truths about justice and
common good, involves. Consider the following general claim:
Any account (or theory, or world view) that allows that some things are just
and others are unjust must also allow that it is
true to call those things just or unjust respectively.
This claim does not imply that this is all there is to truth (though some
philosophers take that view),
n145 but whatever there is to truth, there is this. Therefore, the idea of truth
is not more (nor less) Platonistic, universalistic, or metaphysical than the
idea of, for example, justice.
Why say, as the philosophical objection to the idea of procedure-independent
standards of justice or common good seems to, that this connection between a
thing's being just and its being true to say so only holds for accounts that
assert that some things are universally, independently, timelessly, necessarily
just? Why think these extra things must be included or presupposed if we are
to admit that it is true to call something just? The above general claim seems
undeniable even where no such qualification (universality, independence,
timelessness, necessity) are attached. These qualifications would be more
understandable if there were a similar qualification in nonmoral contexts. But
there is not. Nonmoral truths generally do not need to be universal,
necessary, timeless, or independent. One example of a sentence that is surely
capable of truth and falsity when it is used to describe some particular
person, but is none of these grander things, would be:
"John is afraid of breaking the law." Four observations should be made regarding this sentence.
Observation 1. -- It can be true without being
timelessly true; John may overcome this fear, or he may not have always had it. If
timeless only means that it is true for all time when temporal indexes are
added, as in
"John is afraid of breaking the law throughout September 1992," then maybe this statement is timelessly true. If so, I have no objection to
requiring a similar weak brand of timelessness in the case of justness
statements. The point would remain that what is just need not remain
timelessly the same for such statements to have truth value.
Observation 2. -- It can be true without being so,
independently of all mental states; certainly, the truth of the sentence is not independent
of John's mental states. If you want to say that the relevant sense of
independence concerns beliefs, not fears, then consider the sentence,
"John believes he has broken the law." This sentence can be true, but need not be true independently of John's
beliefs. There is a good counterexample for any condition which asserts that
for something to be true it must be true independently of
S's having mental states
m. Consider the statement,
m." The statement's truth could not be independent of
m, and yet it seems bound to be true or false.
Observation 3. -- It can be true without being
necessarily so; John is afraid but he need not have been. Things could have been
Observation 4. -- It can be true without being true
universally (or from every point of view); what counts as the
"law" in such a sentence is context-relative. When one person says it, it may refer
to Israeli law, but when I say it, it may refer to United States law. When
said in certain contexts, it may refer to only whichever laws John regards as
covering him. (Again, if one builds all these indexical elements into the
proposition in question, one may get something like universality. If so, I
accept this weak kind of universality on the truth value of moral statements as
There may be some nonmoral truths that have some or all of these properties
(timelessness, necessity, universality, and independence). In any event, there
are clear examples of truths that lack some or all of them. Therefore, moral
truths need not have these properties to count as truths (or at least special
reason must be given for burdening moral truth in this way).
It may be asked what moral reality could be like so as to make any moral
statements true. The answer is simple (up to a point). For it to be true that
x is wrong,
be wrong. The question of how anything could be wrong is a fine -- but different
-- question. A similar question how anything could be just, or in the general
interest, may be raised. But if one thinks anything is just or in the general
interest, then one must admit
[*1467] that in those cases it would be
n146 If we switch from the question of how it could be true that
x is just to the question of how something could be just, there should be little
temptation to think that the only possible answers allude to a Platonic realm
of moral facts (even if that is one possible kind of answer).
Rawls's theory of a just basic structure of society
n147 is, for example, one philosophical option that makes no use of moral facts
that are prior to and independent of practical reason (as he would put it).
If this is how we treat truth, then who cares whether normative political
principles can be true? Why raise a big stink about whether the statement
"x is just" is true, and not just simply ask whether
x is just? The answer is that something cannot be known unless it can be true;
there is no question about the epistemology of political principles if there is
no question about their truth. One deliberative conception of proper
democratic institutions is importantly
epistemological; it asserts, for example, that people try to figure things out and correct
their beliefs in light of arguments and reasons that support a contradicting
belief, and that some are wiser than others. Epistemic democracy is not just
epistemic in the sense that it
produces outcomes that meet an independent standard. That would not be epistemological
at all. It is epistemic in the sense that people come to
know, more or less well, the independent standard and what meets it. This
conception of epistemic democracy does not require that the facts in question
be universal, necessary, timeless, or independent. It does require
some account, of course, but I am concerned here mainly with the gun-shy reaction
to truth that is so frequently encountered. This fear, like many, feeds on an
exaggeration of the dimensions of its object. When truth is brought down to
size, perhaps it is philosophically less frightening.
VII. Epistemic Proceduralism
Even if all the concerns about the idea of political truth were calmed, the
following objection to an epistemic conception of democratic deliberation and
voting might still be raised. An epistemic conception would seem to be
incompatible with two basic convictions: (1) democracy often gets it wrong, and
(2) certain political decisions are legitimate even if they
[*1468] are wrong. Regarding the first point, an epistemic conception of deliberative
democracy is free to acknowledge that democratic decisions are robustly
fallible (to put it politely). The epistemic conception might be thought to
imply that the general run of law and policy is legitimate (as I assume it is)
only because democracy almost always gets it right. If much democratic
fallibility is acknowledged,
n149 it may seem impossible to explain the general legitimacy of democratic
An epistemic theory of democracy can be put in a form that avoids this problem.
I shall provide only a sketch of such a theory here. Assume that any adequate
theory of democratic legitimacy must admit that the legitimacy of democratic
choices does not depend on their independent moral correctness (though there
are limits). It must derive, then, from something about the procedure itself.
Dissenting citizens are not free to reject the legitimacy of Bill Clinton's
political authority just because they think his election is a moral mistake or
his policies are unjust. An adequate theory must be
"proceduralist" in this sense. This notion may seem to count against an epistemic approach's
appeal to procedure-independent standards. There is a natural proceduralist
theory of democratic legitimacy that does not appeal to any independent
standards, but instead relies on the
fairness of democratic procedures to legitimate their outcomes, even when they are
mistaken under (correct, but not liberally admissible) independent standards.
I shall call this view
"Fair Proceduralism." But if a liberally acceptable independent standard exists, we can reasonably
object that Fair Proceduralism ignores the question of how often or how well
the independent standard is met -- how often the procedures produce
substantively just decisions. Is our only choice between a nonproceduralist epistemic
theory, which can only explain run-of-the-mill legitimacy in terms of
run-of-the-mill moral correctness, and a Fair Proceduralism, which utterly
neglects such appropriate independent standards as there might be? Neither of
these choices is acceptable, but we do not need to choose between them.
One may argue that there is a liberally acceptable independent standard of the
correctness of political decisions, and that democratic choices are legitimate
because of democracy's (imperfect) tendency to produce choices that are correct
under such a standard. I shall call this view
"Epistemic Proceduralism." The theory remains properly proceduralist because
[*1469] legitimacy does not require correctness, and yet the (supposedly) independent
standard plays a central role in the account of legitimacy. Of course, the
viability of such a theory depends on the development of a liberally admissible
standard (independent of actual procedures) for democratic choices and on the
standard's being adequately met by certain democratic procedures. The tendency
of democracy to produce correct decisions by this standard is best defended, I
believe, through the idea of epistemically valuable public discussion and
This brief sketch of an epistemic theory of democracy raises many questions
that cannot be addressed here. One question, however, is so central to our
topic as to be worth considering: Is Epistemic Proceduralism essentially
deliberative? Gauthier's and
Rawls's theories are not, as I have argued.
n150 There are significant differences between Epistemic Proceduralism and those
In Epistemic Proceduralism, there is a procedure-independent standard of
justice; under our terminology it is
n151 Nevertheless, legitimacy is a purely procedural standard on this view.
Legitimacy derives from actual deliberations, and while those deliberations are
about an independent standard of justice, the outcome's legitimacy is not
equivalent to its meeting that independent standard. There may or may not be
an essentially deliberative aspect of the account of justice, but such an
aspect is not necessary. The account of legitimacy, however,
is essentially deliberative. A decision is made legitimate by being chosen in an
actual deliberative democratic procedure that tends -- though imperfectly -- to
produce substantially just decisions. There is no salient nondeliberative
alternative formulation that would necessarily declare all the same decisions
legitimate or illegitimate as does the deliberative formulation.
If some nondeliberative procedure were able to meet the criteria -- moral and
epistemic -- of a legitimating procedure, then a theory in terms of that
procedure would not be deliberative. However, if deliberative democratic
procedures are uniquely able to meet such criteria, as I believe they are, the
only question is whether those procedures would necessarily be effectively
equivalent to any alternative procedures formulated without reference to such
deliberative notions as discussion, argument, and agreement. Epistemic
Proceduralism denies two things here: (1) that any nondeliberative,
nondemocratic procedure will do
as well under the appropriate moral and epistemological criteria; and (2) that the
deliberative democratic procedures alleged to fit the bill are equivalent to,
in the sense of necessarily always giving
the same answer as, some nondeliberative procedure.
[*1470] The first denial actually implies the second, but the second specifically
addresses the issue in the terms in which we have considered it in evaluating
Gauthier's deliberative credentials.
VIII. Michelman Revisited
It is instructive to compare Epistemic Proceduralism with Michelman's
deliberative conception of democracy.
n153 The two views share much ground, some of which is generally controversial and
some of which is not. I believe both views accept all of the following
assertions: (1) in a deliberative conception of democracy, voting procedures
constitute a pooling of cognitive judgments; (2) such cognitive judgments
presuppose that they are either true or false, correct or incorrect; (3) the
presupposed truth or falsity of these judgments does not consist in their being
endorsed by democratic procedures but depends on some standard that is
independent of the outcomes of democratic choice procedures; (4) there are
purely procedural kinds of fairness that provide some degree of political
legitimacy for their outcomes; (5) no consensus is likely on what in a given
case is the correct choice (for example, the truly just choice); and (6) a
decision is produced, despite a lack of consensus, by taking a vote.
Nevertheless, there are differences between Epistemic Proceduralism and
Michelman's deliberative democracy. To see these differences, consider a
certain tension that arises from the application of Michelman's view:
Proposition 1. -- Deliberative politics is made up of judgments that imply an objectively
correct or truly just answer, in a procedure-independent sense.
Proposition 2. -- Democratic legitimacy has nothing to do with any tendency to produce or
promote such objectively correct decisions.
Both Michelman's view and Epistemic Proceduralism accept the first proposition,
but they may diverge on the second. Michelman seems to consider the question
raised by the second, but only indirectly and indeterminately. He suggests
that a deliberative conception could go either way on this question.
n155 That suggestion implies that some nonepistemic standard of legitimacy would be
required of a deliberative conception that rejects the
[*1471] second proposition; at least, the standard would not involve democracy's
ability to discover the truths
mentioned in the first.
It is true that notions of deliberative politics
may be framed as presupposing the existence of objectively discoverable,
transcendently right or best answers, or as demanding of participants the
submergence of their individualities and conflicts in a collective being or
common good. But aspirations to deliberative politics
need not carry such strongly solidaristic baggage.
It is clear that Michelman lacks sympathy for this
"solidaristic" view, but it is unclear whether he objects to its pursuit of objectively
correct choices or to its totalitarian submergence of individuality or to both.
On the question of objectively correct choices, we have seen that Michelman is
willing to count truth-seeking as a constitutional value.
n157 However, is the truth he is comfortable with here the same truth that is
presupposed by deliberative political participation? Does he admit as a
constitutional value the ability of democratic procedures to determine which
positions in the deliberative political forum are correct? Michelman's view on
this question is difficult to discern, but textual evidence suggests that he
believes that the truths presupposed and debated in political discourse are
not to be chosen among by the democratic procedure.
n158 Instead, the role of democratic procedure is to arrive at political truth of
another kind: a reasonable resolution in light of the persisting first-order
disagreements. The outcome of democratic procedure is counted as reasonable so
long as the procedure allows for each citizen's full and free exercise of
argument and reason in the discussion preceding a vote. Apparently, then, this
reasonable resolution is not a procedure-independent standard of correctness.
Actual discursive procedures constitute this kind of
"correctness" of political choices on Michelman's view, even though cognitive reason in the
deliberative process presupposes a more
"transcendent" sense of correctness.
"Transcendent" here seems to mean procedure independent. The political truth that Michelman
is willing to credit as a constitutional goal is not transcendent, but purely
Hence, the state is justified by its purpose of establishing and ordering the
public sphere within which persons can achieve freedom in the sense of
self-government by the exercise of reason in public dialogue. . . . It is in
this qualified sense of . . . a commitment to the possibility of reaching a
common understanding through the
[*1472] communicative action of reason-giving in public debate -- that I speak of
political truth, or truth-seeking. . . .
Michelman's view creates a tension, then, between the two propositions
--between the admission that each participant presupposes a
procedure-independent truth about what ought to be done, and the proposition
that political legitimacy has nothing to do with the production or promotion of
decisions that are correct by that independent standard. This tension does not
involve a contradiction, however, and there may be good reasons to live with
it. For example, it may be impossible to postulate that legitimacy depends on
democracy's tendency to get it right without also officially adopting a view of
the common good that some reasonable citizens might well reject. An epistemic
theory of democratic legitimacy may thus offend a liberal respect for
reasonable and deeply held moral and philosophical differences between
citizens. If so, then it should indeed be rejected.
On the other hand, the tension is acute. How can the same citizen hold both
that there is a procedure-independent standard regarding what ought to be done,
and that political legitimacy has nothing to do with whether political
decisions are correct by the appropriate independent standard? With (liberal)
due respect for conscientious disagreement, it is important to consider whether
this tension can be removed by an epistemic account. As I understand
Michelman, he is inclined to doubt it. Hence, political legitimacy is derived
from purely procedural values, albeit those concerning procedures in which
citizens address themselves to substantive, procedure-independent matters.
Epistemic Proceduralism, on the other hand, holds that democratic legitimacy
derives partly from democracy's ability to separate the correct from the
incorrect positions advocated within democratic deliberation. It avoids
illiberal sectarianism by supposing that the positions it must choose between
-- those offered in the public deliberations -- are already passed through a
liberal filter. Some claims or arguments are not acceptable as reasons in
political deliberation because they offend the commitments of some reasonable
moral or philosophical world views in the society. Epistemic Proceduralism
requires a skeletal account of justice or common good that is beyond reasonable
objection in the requisite respects, but the fleshing out of this account is
the business of democratic procedures. Correctly fleshing out the notion of
justice or common good is independent of actual political procedures and is the
topic to which democratic deliberation ought to be devoted. Democratic
outcomes are legitimate because of the imperfect but real tendency of
democratic procedures to approximate
[*1473] the correct answer -- the correct fleshing out of the skeletal conception of
justice or common good. Such a view would be at once deliberative, democratic,
liberal, and epistemic. Of course, whether such a view is possible is too big
a question for us to tackle here. It would, in any case, involve
procedure-independent political truth in the theory of political legitimacy in
a way that Michelman's view, for better or worse, apparently does not.
IX. Voting Rights and Deliberative Democracy
Where some group is in a minority in every voting district, and all of a
district's representatives go to the winning party under majority rule,
polarized voting can render the minority group powerless at the legislative
level. Advocates of minority power often respond to such polarization with
calls for voting schemes that would translate the minority's polarized,
block-like voting behavior into more electoral victories, or more policy
influence, or both.
n160 The goal of greater minority representation at the legislative and policy
levels can be endorsed from either a deliberative or a strategic point of view.
As noted earlier,
n161 even left-leaning work in voting rights often waxes strategic. It often
accepts a competitive and factional conception of voting while seeking to
increase the power of the smaller factions. This section will briefly argue
that this emphasis may be misguided. Voting rights jurisprudence ought at
least to join deliberative theory's critique of strategic or pluralist models
Samuel Issacharoff explicitly acknowledges the conflict between deliberative
and group-interest models and endorses the latter.
n162 He also notes the existence of racial polarization, which he says is to be
expected given the
"fundamentally different societal interests resulting from the basic differences
in the socioeconomic means of blacks and whites."
n163 Issacharoff regards polarized voting patterns as
"unfortunate," however, and suggests that there is more to interest-group concerns about
ideal politics than in other forms of interest-group competition.
n164 Therefore, in criticizing
"republicanism" and opting for pluralism in the area of voting
[*1474] rights, he may be advocating strategic political practice on the part of
racial minorities more than endorsing any theory of the moral legitimacy of
It is important not to confuse the advocacy of strategic action with the
endorsement of a strategic model of legitimacy. Even for a theorist who
advocates a deliberative model of legitimacy, it may be entirely consistent to
recommend strategic, nondeliberative political activity for certain individuals
or groups as a response to largely strategic action in the rest of the
population. Issacharoff emphasizes that voting rights jurisprudence is founded
on the long-standing reality of racially polarized voting and the
well-documented supposition that white racial bigotry is an important cause.
n165 In such a case, self-protection may be a sufficient warrant for
African-American strategic behavior. Indeed, tit-for-tat resorts to strategic
behavior may even produce a more legitimate political process than if some
voters acted strategically while others were naively public spirited.
n166 Certainly, legitimacy is not enhanced by the existence of suckers. To the
extent that a process affords everyone equal power over the outcomes, and the
power is effectively used, this kind of procedural fairness admittedly lends
some moral legitimacy to the outcomes. This leaves open the possibility that
deliberative politics offers more legitimacy yet. Deliberative theories of
legitimacy are compatible with this claim since they may assert that mere
procedural fairness yields only a weak and limited form of legitimacy, inferior
to that available in a deliberative theory. Thus, the strategic cast of
Issacharoff's discussion of racial politics does not imply any commitment to
the superiority of a strategic versus a deliberative theory of democratic
Lani Guinier avows ambivalence between deliberative and strategic (or
"pluralist") models of legitimacy,
n167 but the tendency of her thought is, so far, strategic. She often speaks the
language of pluralism, as when she says that
"[a] fair system of political representation" would ensure that minority groups
"have a fair chance to have their policy preferences satisfied"
n168 and advocates
"an equal opportunity to influence public policy."
n169 In eliding the possibility that some citizens' interests are less meritorious
than others, Guinier's view is distinctively pluralist.
[*1475] Guinier's adoption of the pluralist model is apparently founded in part on its
being the only thoroughly articulated model of democratic process.
Recognizing some normative limitations in a pluralist approach to democratic
legitimacy, Guinier asserts that
"in a racially polarized environment, some systems may be procedurally fair but
n172 The critique does not go very far, however, since it fails to challenge the
moral legitimacy of majority rule under a white majority where racial bias is
not a factor. Where African-Americans' interests are trampled as a result of
their smaller numbers and not because of bigotry, Guinier has no resources from
which to challenge the majoritarian decision. Guinier is not sufficiently
clear about whether the illegitimacy of the decisions produced by existing
white majorities is rooted in the
permanence of this particular majority,
bigoted nature of white voting patterns,
n174 or the very idea of rule in the
interests of a majority.
n175 Only the last would recognize the dangers posed for minority groups by a
pluralist theory of legitimacy.
Voting rights theory should be expected to recognize that even without the
presence of bigotry, or ill-will on any side, the outcome of a contest in which
each individual is given equal power over the outcome and exercises that power
in her own interest could yet be unjust. Equal power over policy outcomes is a
formula for the hegemony of the most numerous interest group or coalition.
Racial minorities, it is safe to say, lack the power of numbers, and so have a
front-line position to feel the impact of the potentially unjust decisions of
an interest-based majoritarianism. Pluralist or strategic models tend to link
legitimacy to the power of numbers in this way, and deliberative theorists
typically reject the link.
n176 Deliberative theory, then, may have something to offer to the voting rights
movement, as a more congenial model of political legitimacy. Racial (and
other) minority groups would do well both to increase their political power,
and at the same time criticize the idea that the balance of political power
determines what is just or legitimate.
[*1476] X. Conclusion
My aim has not been to defend a particular deliberative conception of politics,
such as Epistemic Proceduralism. Instead, the question I have primarily
addressed has been whether and how the distinction between deliberative and
strategic politics can fruitfully be drawn. I have suggested that it is
distinctive of deliberative conceptions of politics that the content of justice
or the common good is independent of actual political decisions and is what
political participants ought to address and aim to achieve. This notion of
democratic politics gives a common topic to political deliberation that is
absent from conceptions in which citizens pursue their own preferences or
interests. Under those views, citizens address common topics only when their
separate projects happen to call for it. Where justice is an independent
standard, political choices that attempt to meet the standard can be incorrect;
deliberation about what the standard is and prescribes will involve judgments
that can be true or false.
The idea of true or false judgments about political justice is perhaps the key
to a useful deliberative/strategic dichotomy. Without it, theories such as
Gauthier's, which can correctly claim to involve reason, deliberation,
judgment, mutual respect, fairness, and many other good qualities, can thereby
apply for membership in the deliberative category. Gauthier's theory does not
essentially involve cognitive deliberation at any level -- actual or ideal,
constitutional, legislative, or electoral. At each of these levels the goal is
to remove obstacles to efficient pursuit by individuals of their own
preferences. In the choice of a constitution, efficiency is the extent of a
common topic of deliberation, but I have argued that even there the
deliberation is removable from the account without essential change.
Gauthier's theory shares many good things with deliberative theories, but at
least at the constitutional level, it categorically denies that there are
procedure-independent standards of justice or common good. Political and moral
standards are constituted by actual choices among Pareto optimal arrangements.
There are no truths concerning justice about which to deliberate, nothing to
ascertain or approximate. This evasion of political truth and knowledge has
long won admirers among those fearful that truths about justice and common good
are incompatible with democracy and those with liberal respect for divergent
views. I have tried to show that truth in political philosophy can play a
constructive role while avoiding much of its traditional metaphysical clothing.
If there is such a thing as an arrangement's being just, then it is
true to call that arrangement just. That idea is enough to let truth,
epistemology, and cognitive deliberation in the door (though making them check
This analysis does not suffice to establish the merits of an epistemic theory
of democracy, but it forestalls some of the most influential objections.
Michelman's idea of a politics in which voting is a pooling of
[*1477] judgments has been central to the deliberative strand in democratic theory at
least since Rousseau asserted that voters should address the General Will (and
could -- and usually did -- get it wrong).
n177 Nevertheless, the epistemic side of Rousseauean theory is still usually
avoided -- even feared -- for the reasons discussed above.
n178 I do not believe the fears are well founded. Whether or not any more robust
kind of legitimacy can be achieved, the non-epistemic proceduralism's brand of
legitimacy is quite limited. For the engaged citizen with his or her own views
about substantive justice, non-epistemic proceduralism has bad news and good
news. The bad news is:
"Thank you for your opinion, but the procedure has no particular sensitivity to
good reasons -- no positive tendency to approximate the true or more reasonable
outcomes." The good news is:
"It may be some consolation to know that no one else's considered judgments or
preferences are any more likely to make a difference than yours." This is indeed something, but not much. At the same time, the idea that
reasoned appeals to one's fellow citizens will have
no tendency to improve the quality of outcomes may be an extreme and implausible
pessimism. Perhaps Michelman himself is not that pessimistic. However, all it
takes to sign on to the epistemic approach is to reject such severe and
unfounded doubts. Epistemic Proceduralism makes a very limited epistemic
claim: Democratic decisions will tend to be of higher quality after full
reasoned discussion culminating in voting. It does not say the decisions will
always be correct, or that their legitimacy depends on their being correct.
Theories like Michelman's, which advocate full and equal public deliberation
culminating in a vote, have little reason to stop short of these modest
epistemic claims; indeed, their emphasis on public deliberation is difficult to
understand without the further step.
n179 An Epistemic Proceduralism of the kind I have sketched suggests that not only
is this philosophically bolder deliberative theory of democracy truer to the
most useful deliberative/strategic dichotomy, but eventually it may even be a
viable theory of democratic legitimacy. Deliberative democracy countenances
political truth, an idea whose use in political philosophy requires caution,
but not fear.
n1 The phrase appears to have been coined by Joseph M. Bessette,
Deliberative Democracy: The Majority Principle in Republican Government, in HOW DEMOCRATIC IS THE CONSTITUTION? 102, 104 (Robert A. Goldwin
& William A. Schambra eds., 1980).
See also JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE DEMOCRACY AND
AMERICAN NATIONAL GOVERNMENT (forthcoming 1994).
See generally DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS (1958); JAMES M. BUCHANAN
& GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL
DEMOCRACY (1962); ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956);
ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957).
n3 For examples of the deliberative versus the strategic conception of politics,
compare Bruce A. Ackerman,
The Storrs Lectures: Discovering the Constitution,
93 YALE L.J. 1013 (1984); Frank I. Michelman,
97 YALE L.J. 1493 (1988) [hereinafter Michelman,
Law's Republic]; Frank I. Michelman,
The Supreme Court, 1985 Term -- Foreword: Traces of Self-Government,
100 HARV. L. REV. 4 (1986); Cass R. Sunstein,
Beyond the Republican Revival,
97 YALE L.J. 1539 (1988) [hereinafter Sunstein,
Beyond the Republican Revival]; Cass R. Sunstein,
Interest Groups in American Public Law,
38 STAN. L. REV. 29 (1985); and Cass R. Sunstein,
Naked Preferences and the Constitution,
84 COLUM. L. REV. 1689 (1984) with RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN (1985); Richard A. Epstein,
Beyond the Rule of Law: Civic Virtue and Constitutional Structure,
56 GEO. WASH. L. REV. 149 (1987); William M. Landes
& Richard A. Posner,
The Independent Judiciary in an Interest-Group Perspective,
18 J.L. & ECON. 875 (1975); and Richard A. Posner,
Case and the Constitutionality of Preferential Treatment of Racial Minorities,
1974 SUP. CT. REV. 1, 19-32.
n4 Illustrative of deliberative views are
Deliberation and Democratic Legitimacy, in THE GOOD POLITY: NORMATIVE ANALYSIS OF THE STATE 17, 18-32 (Alan Hamlin
& Philip Pettit eds., 1989) (developing and defending from strategic
counterarguments an ideal deliberative procedure for a deliberative democracy);
The Market and the Forum: Three Varieties of Political Theory, in FOUNDATIONS OF SOCIAL CHOICE THEORY 103, 111-12 (Jon Elster
& Aanund Hylland eds., 1986) (attacking the injection of marketplace
preferential behavior into analyses of the political forum); and Jurgen
Morality and Ethical Life: Does Hegel's Critique of Kant Apply to Discourse
83 NW. U. L. REV. 38, 41 (1989) (urging a moral philosophy based on a
"cooperative search for truth" rather than encouraging individuals to act in their self-interest). In
contrast, for examples of strategist views, see ROBERT A. DAHL, DEMOCRACY AND
ITS CRITICS 307-08 (1989) (arguing that the common good is merely what the
fully informed members of a group would choose in their own interests); DOWNS,
supra note 2, at 20 (proposing a model of democratic government rooted in
rationality understood in its utility-maximizing economic sense); David
Constituting Democracy, in THE IDEA OF DEMOCRACY 314, 315 (David Copp et al. eds., 1993) (asserting that
"ordinary law-making . . . typically rests on a strategic power play"); and John C. Harsanyi,
Morality and the Theory of Rational Behavior, in UTILITARIANISM AND BEYOND 39, 61 (Amartya Sen
& Bernard Williams eds., 1982) (concluding that morality is the product of
rational, utility-maximizing behavior).
Beyond the Republican Revival, supra note 3, at 1546 (remarking that utilitarianism cannot be harmonized with the
deliberative legislative process as it actually occurs).
See Robert Sugden,
Maximizing Social Welfare: Is It the Government's Business?, in THE GOOD POLITY: NORMATIVE ANALYSIS OF THE STATE,
supra note 4, at 69, 69-70.
See HORATIO W. DRESSER, A HISTORY OF MODERN PHILOSOPHY 297, 301 (1928) (describing
Jeremy Bentham as the formulator of utilitarianism and John Stuart Mill as its
defender); BRYAN MAGEE, MEN OF IDEAS 152 (1978) (characterizing Bentham and
Mill as the popularizers of utilitarianism).
n8 For his interpretation of voting as expressing a cognitive judgment on the
common good, see JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT
155 (Currin V. Shields ed., Bobbs-Merrill Co. 1958) (3d ed. 1865) ("His vote . . . has no more to do with his personal wishes than the verdict of a
juryman. It is strictly a matter of duty; he is bound to give it according to
his best and most conscientious opinion of the public good.").
n9 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 423
(Edwin Cannan ed., Modern Library 1937) (5th ed. 1789) ("[Every individual] generally, indeed, neither intends to promote the public
interest, nor knows how much he is promoting it. . . . [H]e intends only his
own gain, and he is in this . . . led by an
invisible hand to promote an end which was no part of his intention." (emphasis added)).
See Steven G. Gey,
The Unfortunate Revival of Civic Republicanism,
141 U. PA. L. REV. 801, 802-03 (1993) (noting that civic republicans and leftists both
"view government as the necessary agent for cultivating positive social values
and developing a 'good' society");
supra note 4, at 18 (observing that one goal of deliberative democracy is to ensure
that the political agenda is not controlled by economically powerful groups).
See, e.g., Gey,
supra note 10, at 808-09 (defining civic virtue as an essentialist, non-neutral
concept that is diametrically opposed to pluralism).
id. at 891 (describing elitist and paternalistic aspects of civic republicanism that
align it with the right). For example, in a surprising case of a nascent
academic category jumping from the Ivory Tower to the best-seller shelf,
conservative media commentator George Will has endorsed congressional term
limits in the name of deliberative democracy. GEORGE F. WILL, RESTORATION:
CONGRESS, TERM LIMITS, AND THE RECOVERY OF DELIBERATIVE DEMOCRACY (1992).
See, e.g., JURGEN HABERMAS, 2 THE THEORY OF COMMUNICATIVE ACTION 345-47 (Thomas McCarthy
trans., 3d ed. 1985) (arguing that capitalism and democracy are separated by an
The Economic Basis of Deliberative Democracy, in SOCIAL PHILOSOPHY AND POLICY 25, 49 (1989) (discussing
"the ways that the deliberative conception of democracy provides the core of a
philosophical conception of socialism"); Cohen,
supra note 4, at 30-32 (advocating the institutionalization of deliberative
procedures through the use of public funds).
See supra note 12.
See infra Part IX.
n16 Effectiveness can be precisely cashed out for formal purposes by supposing
each person has a ranking of states of the world such that he or she is
disposed to choose some over others. Taking the most effective means to your
ends is nothing but bringing about as highly ranked a state of the world as you
See Brian Barry
& Russell Hardin,
Introduction to Part II: Individual Preferences and Collective Decisions, in RATIONAL MAN, IRRATIONAL SOCIETY? 213, 224-26 (Brian Barry
& Russell Hardin eds., 1982) (arguing that the social choice literature usually
interprets preferences as rankings of complete, and thus mutually exclusive,
n17 Admittedly, many descriptions of deliberative democracy emphasize these
See, e.g., Cohen,
supra note 4, at 19 (characterizing democratic politics as a
"fair system of social cooperation"); Sunstein,
Beyond the Republican Revival, supra note 3, at 1541 (listing deliberation in politics and universalism made
possible by practical reason as central principles).
n18 For a discussion of the nature of strategic politics, also labelled the
"public choice" or
"pluralism," see DENNIS C. MUELLER, PUBLIC CHOICE 1 (1979) (noting that
"[t]he basic behavioral postulate of public choice . . . is that man is an
egoistic, rational, utility maximizer"); Michelman,
Law's Republic, supra note 3, at 1507 (stating that
"pluralism . . . doubts or denies our ability to communicate . . . without
deception, coercion, or other manipulation"); Sunstein,
Beyond the Republican Revival, supra note 3, at 1542 (asserting that
"politics [under the pluralist conception] consists of a struggle among interest
groups for scarce social resources").
n19 Frank I. Michelman,
Conceptions of Democracy in American Constitutional Argument: The Case of
56 TENN. L. REV. 291, 293-94 (1989) [hereinafter Michelman,
The Case of Pornography Regulation]; Frank I. Michelman,
Conceptions of Democracy in American Constitutional Argument: Voting Rights,
41 FLA. L. REV. 443, 447-50 (1989) [hereinafter Michelman,
supra note 4, at 314.
The Case of Pornography Regulation, supra note 19, at 293.
n24 This claim does not imply that each person is expected to vote for the social
choice that she thinks best serves her own interests. This use of a vote is
often not the most self-interested. For example, it may better serve my
interests to vote for a less preferred outcome if that vote will produce the
best chance of avoiding an even worse outcome. A model on which each person
votes for the outcome that would best promote her interests cannot be combined
with the assumption of purely self-interested voting. Therefore, it cannot be
combined with a purely strategic model of politics as Michelman understands it.
The Case of Pornography Regulation, supra note 19, at 293.
n26 CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 24 (1993).
See, e.g., DAHL,
supra note 2, at 4, 134-35 (formulating a theory that balances the power of
majorities and the power of minorities based upon the relative intensity of
preferences among the members of each group); Gary S. Becker,
A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. ECON. 371, 372 (1983) (adopting an economic perspective of pluralism
in which political equilibrium is reached when competing groups maximize their
incomes by spending the optimal amount on the exertion of political pressure).
supra note 26, at 24-28.
The Case of Pornography Regulation, supra note 19, at 293.
Beyond the Republican Revival, supra note 3, at 1545.
supra note 26, at 253.
Id. at 20. I cite this for its epistemic conception, not for its view of
representatives as especially wise. I doubt that their, or anyone's, having
special moral wisdom could be defended in a liberally acceptable way.
See David Estlund,
Making Truth Safe for Democracy, in THE IDEA OF DEMOCRACY,
supra note 20, at 71, 94 (concluding that society would not be capable of
identifying, in a way acceptable to all reasonable citizens, those individuals
qualified to rule based upon their special moral wisdom).
See supra notes 21-24 and accompanying text.
supra note 33, at 74-76 (characterizing the opposition to normative political truth
as an anti-authoritarian reaction to the natural-law tradition and identifying
strategic theorists such as Duncan Black as leaders of the anti-authoritarian
supra note 4, at 315.
Id. at 326.
See THOMAS HOBBES, LEVIATHAN 87 (Richard Tuck ed., Cambridge Univ. Press 1991)
(1651) ("[I]f any two men desire the same thing, which nevertheless they cannot both
enjoy, they become enemies; and in the way to their End, (which is principally
their owne conservation . . .) endeavour to destroy, or subdue one an other.").
n39 This condition is the economist's notion of Pareto efficiency. JOHN
RAWLS, A THEORY OF JUSTICE 66 (1971). For a fuller explanation of the problem,
see id. at 67-69.
supra note 38, at 120-21.
n41 JOHN LOCKE, TWO TREATISES OF GOVERNMENT 326 (Peter Laslett ed., student ed.
1988) (3d ed. 1698).
Beyond the Republican Revival, supra note 3, at 1561-62 (arguing that bicameralism, federalism, and legal rights
constitute a system of checks and balances that counteracts excessive ambition
and allows the different governments to control each other).
supra note 4, at 318.
supra note 38, at 89 ("Nature . . . render[s] men apt to invade, and destroy one another.").
supra note 4, at 317.
supra note 38, at 96 (arguing that in a state of nature there is no assurance that
one party to an agreement will be able to secure performance from the other
party, once the first party has performed). For a sympathetic exposition of
Hobbes's argument, see generally GREGORY KAVKA, HOBBESIAN MORAL AND POLITICAL
See GAUTHIER, MORALS BY AGREEMENT 113-14 (1986) (arguing that
"[r]eason . . . offers . . . the prospect of new benefits achieved mutually,
Id. at 227.
See, e.g., CONTRACTARIANISM
& RATIONAL CHOICE: ESSAYS ON DAVID GAUTHIER'S MORALS BY AGREEMENT (Peter
Vallentyne ed., 1991) (collecting fourteen essays debating the merits of
Gauthier's reconciliation of morality and reason); THE NEW SOCIAL CONTRACT:
ESSAYS ON GAUTHIER (Ellen F. Paul ed., 1988) (collecting nine essays discussing
Gauthier's theories, including Gauthier's response to his critics); Alan
Economic Rationality and Morality, 17 PHIL.
& PUB. AFF. 149, 156-57 (1988) (arguing that the problems with Gauthier's theory
include the fact that it requires individuals to be able to recognize others as
either cooperators or noncooperators and the difficulty for even cooperators to
always cooperate rather than act to benefit themselves at the expense of
supra note 4, at 327.
Id. at 318.
supra note 48.
Id. at 338-39.
Id. at 339.
supra note 4, at 319.
n58 For a critical evaluation of Gauthier's theory, see CONTRACTARIANISM
& RATIONAL CHOICE: ESSAYS ON DAVID GAUTHIER'S MORALS BY AGREEMENT,
supra note 50; THE NEW SOCIAL CONTRACT: ESSAYS ON GAUTHIER,
supra note 50.
See supra notes 52-53 and accompanying text.
supra note 4, at 319.
n61 I make this qualification because there may still be certain problems. It is
not clear what impartiality means. There are numerous ways of treating
everyone alike, such as giving each person's interests equal weight in a sum
that is to be maximized, or giving each a veto over certain or any
arrangements. Also, there are difficulties with having each person's interests
figure in every other person's interests, difficulties that can lead to serious
See David M. Estlund,
Mutual Benevolence and the Theory of Happiness, 87 J. PHIL. 187, 187 (1990) (analyzing the
"loop" problem where each person's happiness depends on the happiness of others).
supra note 4, at 319.
Id. at 324.
See id. at 329.
See Christopher W. Morris,
On Contractarian Constitutional Democracy, in THE IDEA OF DEMOCRACY,
supra note 20, at 335, 341 (raising a similar worry regarding Gauthier's
constitutional theory). I follow Morris in supposing
"civic friendship" is intended to pick up the thread from Chapter XI of
Morals By Agreement. See id. at 339;
supra text accompanying notes 54-57.
See supra text accompanying note 63.
supra note 4, at 315-16 (emphasis in original). Gauthier does not defend this
sweeping claim, and it is implausible. Presumably, democratic procedures for
ordinary legislation need to be constituted in logically prior law, which is
higher in that sense.
Id. at 319 (quoting Frank I. Michelman, Conceptions of Democracy in American
Constitutional Argument: The Case of Pornography Regulation (1989) (original
published with revisions in Michelman,
The Case of Pornography Regulation, supra note 19, at 293).
supra note 4, at 322 (emphasis in original).
Id. at 321-22.
See infra text accompanying notes 79-83.
n72 For a more detailed analysis of this problem, see David M. Estlund,
The Persistent Puzzle of the Minority Democrat, 26 AM. PHIL. Q. 143, 146 (1989).
The Case of Pornography Regulation, supra note 19, at 293.
Id. at 302.
See, e.g., THOMAS NAGEL, THE POSSIBILITY OF ALTRUISM 27-32 (refuting the position that
moral beliefs alone cannot produce action and arguing that some facts can
provide motivating reasons even without any pertinent prior desire); WILLIAM
The Moral Philosopher and the Moral Life, in THE WILL TO BELIEVE AND OTHER ESSAYS IN POPULAR PHILOSOPHY (1897),
reprinted in WILLIAM JAMES WRITINGS 1878-1899, at 445, 595-96 (Gerald E. Myers ed., 1992)
(noting that in both ethics and physics, individuals strive to find an account
of the world that can be woven into a single stable system and thus decide what
See, e.g., Hans Oberdiek,
The Will, in AN ENCYCLOPEDIA OF PHILOSOPHY 463, 468 (G.H.R. Parkinson ed., 1988)
(contrasting theoretical reasoning, which is employed to establish the truth or
falsity of facts, laws, and theorems, with practical reasoning, which guides an
"cognitive reason" I just mean reason in the usual sense of a reason to judge or believe that
something is so.
n78 The example is related to
"Pascal's Wager." Discussions of the Wager are a fruitful source of reflections on the
theoretical/practical reason distinction.
See, e.g., JON ELSTER, SOUR GPAPES: STUDIES IN THE SUBVERSION OF RATIONALITY 36, 53, 57,
74 (1983) (mentioning Pascal's Wager as illustrating the premise that by
pretending to hold certain beliefs and preferences over a period of time, you
will eventually accept the pretend beliefs and preferences as your own).
See infra notes 144-46 and accompanying text for a discussion of these in the context of
moral and political truth.
n80 For strong evidence that Michelman intends the cognitive sense of judgment,
see Frank Michelman,
Political Truth and the Rule of Law, 8 TEL AVIV U. STUD. IN L. 281, 291, 290-91 (1988). There, he associates civic
republican thought with a sympathy for the idea of political truth and avows a
"disposition to credit political truth-seeking as a constitutional value."
Id. at 290-91.
n81 For recent essays on pragmatism in legal thought, see Symposium,
The Renaissance of Pragmatism in American Legal Thought,
63 S. CAL. L. REV. 1569 (1990).
See GERALD E. MYERS, WILLIAM JAMES: HIS LIFE AND THOUGHT 292 (1986).
supra note 75, at 600.
The Case of Pornography Regulation, supra note 19, at 293.
supra note 4, at 320.
Voting Rights, supra note 19, at 448 (emphasis in original).
n88 There are philosophical theories that try to retain the idea of moral judgment
and belief without accepting that they admit of truth or falsity.
RAWLS, POLITICAL LIBERALISM at xx (1993) ("Which moral judgments are true, all things considered, is not a matter for
political liberalism, as it approaches all questions from within its own limited point of view."). I criticize
Rawls's reticence about political truth in Estlund,
supra note 33, at 74-80. Allan Gibbard defends a very different view of moral
judgment and belief. ALLAN GIBBARD, WISE CHOICES, APT FEELINGS 6, 7 (1990)
"moral judgments are not feelings but judgments of what moral feelings it is
rational to have," and
"to call something rational is to express one's acceptance of norms that permit
Rawls, Gibbard is willing to characterize his view as
Id. at 8 (noting that
"[t]he analysis is non-cognitivistic in the narrow sense that . . . to call a
thing rational is not to state a matter of fact, either truly or falsely"). It is not clear, however, whether or why Gibbard is entitled to the idea of
"judgments" except insofar as the attitudes in question involve certain elements that
do admit of truth or falsity, such as an act's conforming to certain norms. In
any case, Michelman's use of judgment is explicitly linked to political truth.
supra note 80, at 284.
See, e.g. , BUCHANAN
supra note 2, at 19-20 (comparing an individual's political acts to economic
choices, whereby the actor expresses an individual preference between
alternatives, not a judgment of which alternative furthers the public interest).
See, e.g., JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 269 (3d ed. 1950)
(proposing a model in which the role of people is
"to produce a government" rather than
"hold a definite and rational opinion about every individual question").
n91 Recall the unimposing sense of
"objective" used here.
See supra text accompanying note 79.
n92 An example of an objectivist theory that is not cognitivist would be a theory
according to which the aggregation of (noncognitive) preferences imperfectly
approximates some procedure-independent standard of justice or common good.
See supra notes 37, 62-70 and accompanying text. It is not only that the constitution
might set up coercive institutions to which individuals will necessarily
conform. Gauthier assumes they will voluntarily adhere to these legal
constraints, for the most part, apparently out of moral motivation.
supra note 4, at 324 ("Deliberative agreement may thus be treated as strategic bargaining under full
information, in circumstances designed to remove the effects of all
differential pressures and capacities on reaching agreement.").
supra note 39, at 138 ("To say that a certain conception of justice would be chosen in the original
position is equivalent to saying that rational deliberation satisfying certain
conditions and restrictions would reach a certain conclusion.").
See infra Part V.
supra note 39, at 85.
n98 Gauthier gives this argument in a related context in David Gauthier,
Bargaining Our Way Into Morality: A Do-It-Yourself Primer, in CONTEMPORARY POLITICAL THEORY,
supra note 4, at 153, 162 ("We might say that . . . an agreement is just in manner if and only if it is
genuinely voluntary. But the nearest approximation to what is voluntary in the
case of hypothetical agreement, must be what is rationally acceptable.").
supra note 39, at 139.
Id. at 15.
See id. at 138.
Id. at 12.
See supra notes 49-50 and accompanying text.
See supra notes 52-53 and accompanying text.
Rawls assumes that a principle of justice must choose among the Pareto efficient
alternative distributions (within certain other constraints such as
"the principle of equal liberty or the requirement of open positions").
supra note 39, at 70. Pareto efficiency alone is not only indeterminate but
indeterminate among cases that it would be absurd to treat as morally
indifferent. Pareto efficiency is necessary but not sufficient for justice.
Id. at 67-72.
"There are, I shall assume, many efficient arrangements of the basic structure.
. . . The problem is to choose between them, to find a conception of justice
that singles out one of these efficient distributions as also just."
Id. at 70-71.
See supra text accompanying notes 34-35;
supra Part III.
supra note 4, at 334 n.17.
Id. at 328.
Id. (emphasis in original). It is striking that Jurgen Habermas, whose work has
inspired some of the recent deliberation theories (e.g., Cohen,
supra note 4, at 33 n.12; Elster,
supra note 4, at 112; and Sunstein,
Beyond the Republican Revival, supra note 3, at 1551 n.58
& 1570 n.176), makes a similar split between the structures of ideal and actual
legitimate outcomes, denying any direct implications of his theory for a
deliberative public sphere.
supra note 13, at 186. Still, Habermas's normative political theory apparently is
essentially deliberative in ways that neither Gauthier's nor
See KENNETH BAYNES, THE NORMATIVE GROUNDS OF SOCIAL CRITICISM: KANT,
RAWLS AND HABERMAS 84 (1992) (characterizing Habermas's view of democratic
deliberation as one where
"all other goals and purposes are subordinated to that of reaching agreement");
see also David M. Estlund, Book Review, 20 POL. THEORY 694 (1992) (discussing Baynes's
Rawls's and Habermas's theories of democratic deliberation).
supra note 4, at 328.
See supra notes 94-95 and accompanying text.
supra note 4, at 322.
n113 I say
"largely" because it is possible on Gauthier's view to have an arrangement that is
efficient, but not just, because that arrangement was not actually chosen (at
all, or through a suitable procedure). Justice, however, would be all it lacks.
See supra note 91 and accompanying text.
n115 More precisely, the actual decision so constitutes justice where its
procedure, or at least its outcome, can be thought of as likely to approximate
the outcome of a suitably ideal constitutional choice. Gauthier,
supra note 4, at 328.
See, e.g., SUNSTEIN,
supra note 26, at 175 (identifying
Rawls as one of the
"great theorists of constitutional democracy"); Cohen,
supra note 4, at 17-20 (accepting
Rawls's characterization of the ideal conditions for political institutions).
supra note 39, at 139-40 (arguing that those behind the veil of ignorance would
reach the same result whether they used deliberation or simply formed a
coalition because the coalition
"would not know how to favor themselves").
Rawls uses the term
"deliberation" to apply within the original position.
See, e.g., id. at 138.
"mutually disinterested rationality," is only an approximation of the ordinary concept of self-interest. For a full
account of this assumption, see
id. at 142-50.
Id. at 62.
See id. at 16 ("Justice as fairness is an example of what I have called a contract theory. . .
. [I]t conveys the idea that principles of justice may be conceived as
principles that would be chosen by rational persons, and that in this way
conceptions of justice may be explained and justified."); Gauthier,
supra note 4, at 328 (characterizing the constitution as
"the agreement as concluded by persons who take themselves to be representing .
. . the members of their society, and to be seeking the terms that those
members would find reasonable to accept").
supra note 39, at 357. The two principles of justice are identified by
Rawls as (1) equal rights to as much liberty as possible without infringing on
others' rights, and (2) social/economic equality arranged so any inequalities
have the highest possible minimum standard, and are attached to
offices/positions that are meaningfully open to all members of society.
Id. at 302.
Id. at 12.
Id. at 197.
See id. at 357-62 (describing legislative discussion as part of the ideal process for
producing just legislation).
Id. at 357.
Id. at 359.
n128 Joseph Bessette offers this
"hypothetical test" as a sufficient condition for a political decision to count as democratic.
supra note 1, at 105-06. Notice that, in principle, a dictatorship could meet the
supra note 39, at 357.
See id. at 354 (asserting that citizens have a duty to obey even unjust laws if they
are produced by legislators bound by a just constitution).
See id. at 355, 353-62 ("[I]n adopting some form of majority rule, the parties accept the risks of
suffering the defects of one another's knowledge and sense of justice in order
to gain the advantages of an effective legislative procedure.").
See id. at 221-22 (arguing that all individuals should be equally represented in
making laws with which they must comply).
But see Cohen,
supra note 4, at 18-20 (emphasizing certain proto-deliberative aspects of
Rawls's view that support the argument for broader public debate).
See supra notes 69-70 and accompanying text.
See supra notes 122-24 and accompanying text.
See supra text accompanying notes 34-35;
supra Part III.
supra note 88, at 95 (explaining that the constructivist concept of
political liberalism neither denies nor asserts that the order of moral values is independent).
See id. (declaring that
political liberalism maintains that
"this represented order is the most appropriate one for a democratic society
marked by the fact of reasonable pluralism").
n138 Gauthier denies the relevance of expertise.
supra note 4, at 328 ("[W]e may consider it unreasonable to suppose that any procedure of
representation can guarantee an outcome approximating . . . that of a fair
universal reasoned interchange.").
supra note 33, at 71 (proclaiming that democrats must rebut the inference of the
superiority of rule by the wise stemming from the unequal distribution of
See id. (noting that some deny the existence of a normative truth, others deny that
anyone knows the normative truth, and others emphasize the beneficial effects
of democratic institutions on citizens).
n141 This criterion owes a fuller explication of
"reasonable," but that explication is not necessary here. It is enough to note that
reasonable people can disagree, and, therefore, some can be mistaken even
though reasonable. For
Rawls's account of reasonableness, see
supra note 88, at 48-54. See also his explanation of the
"liberal principle of legitimacy."
Id. at 137 (asserting that political power is proper only if it would reasonably
be expected to win the endorsement of free and equal citizens
"in the light of principles and ideals acceptable to their common human reason").
supra note 33, at 94.
See infra Part VII.
See KARL L. POPPER, THE OPEN SOCIETY AND ITS ENEMIES 210 (1950) (arguing that
knowledge in the Platonic sense is scientifically impossible).
But see T.K. SEUNG, INTUITION AND CONSTRUCTION at xii-xiii (1993) (claiming that the
"bedrock version" of transcendental normative standards, that consisting of only basic normative
ideals, is indispensable for imparting positive norms and for critically
evaluating them); JOHN WILD, PLATO'S MODERN ENEMIES AND THE THEORY OF NATURAL
LAW 1-5 (1953) (defending Plato's belief in natural law as a morally realistic
n145 For several minimal conceptions of
"is true" as redundant or little more, see PAUL HORWICH, TRUTH 6 (1990) ("My plan is to provide a highly deflationary account of our concept of truth. .
. ."); F.P. Ramsey,
Facts and Propositions, in TRUTH 16, 16 (George Pitcher ed., 1964) (finding the problem of truth to be a
"linguistic muddle" where statements such as
"It is true that Caesar was murdered" cannot mean any more than that Caesar was murdered); P.F. Strawson,
Truth, in TRUTH,
supra, at 32, 52-53 (concluding that
"is true" statements are redundant except for their performative functions, such as
expressing agreement with other speakers).
n146 Perhaps justice and common good are concepts we can do without. Maybe what
matters to some is whether a society is free, or equal, or efficient, or
engaged, or whatever. The point in the text applies equally well for any of
See supra notes 122-24 and accompanying text.
n148 It is a complication here to note that
Rawls avoids, even rejects, the terminology of truth as applied to political
supra note 88, at xx, 94, 116, 127 ("Political liberalism, rather than referring to its political conception of justice as true, refers
to it as reasonable instead."). So he does not agree with me that his theory represents a possible approach
to political truth. I criticize the reasons for his reticence about truth in
supra note 33, at 74-80.
See, e.g., EDMOND CAHN, THE PREDICAMENT OF DEMOCRATIC MAN 11-15 (1961) (describing the
consequences of injustices inflicted by democratically elected officials);
ANDREW LEVINE, LIBERAL DEMOCRACY: A CRITIQUE OF ITS THEORY 170 (1981) (arguing
that democracy permits economic injustice); J. ROLAND PENNOCK, DEMOCRATIC
POLITICAL THEORY 158 (1979) (conceding that democracies may fail to live up to
democratic ideals); Michael Oreskes,
American Politics Lose Way as Polls Displace Leadership, N.Y. TIMES, Mar. 18, 1990, at A1 ("[D]omestic politics has become so shallow, mean and even meaningless that it is
failing to produce the ideas and leadership needed to guide the United States
in a rapidly changing world.").
See supra Parts II and V.
See supra note 91 and accompanying text.
See supra Part IV.
See supra notes 21-22, 73-92 and accompanying text.
n154 I leave aside here the complications about whether the choice in question is
to be put to citizens, as in the case of the election of representatives or
executives, or to representatives themselves, as in the case of legislation.
supra note 80, at 284-86 (discussing the extent to which deliberative democracy
incorporates both the
"civic vision," which works toward political truth, and the
"pluralist vision,"which is highly skeptical of the search for truth).
Voting Rights, supra note 19, at 448 (emphasis in original).
supra note 80, at 291.
See, e.g., Michelman,
supra note 80, at 285 (asserting that in pluralist constitutional vision the
"accidental set of outcomes . . . are not, themselves in any sense truth directed").
Id. at 284.
See, e.g., Lani Guinier,
Groups, Representqation, and Race-Conscious Districting: A Case of the
71 TEX. L. REV. 1589 (1993) (proposing a system of semi-proportional voting comparable to cumulative
voting in corporate law).
See supra text accompanying note 15.
See Samuel Issacharoff,
Polarized Voting and the Political Process: The Transformation of Voting Rights
90 MICH. L. REV. 1833, 1874 (1992) ("The republicanist image of politics stands quite apart from the group-based
interests which underlie contemporary voting rights jurisprudence.").
Id. at 1879. This assertion is echoed by Lani Guinier.
supra note 160, at 1624 ("The group differentiation of racial minorities is a function of historical
oppression, shared experience, and present inequality.").
supra note 162, at 1879.
id. at 1855 ("[R]acial bloc voting is the single most salient feature of contemporary
political life in this country.").
supra note 78, at 115-16.
See Lani Guinier,
The Triumph of Tokenism: The Voting Rights Act and the Theory of Black
89 MICH. L. REV. 1077, 1145 (1991) (claiming that her proposed proportionate interest representation theory is
"based on a view of politics that is both interest-based and deliberative").
Id. at 1136 (emphasis omitted).
supra note 160, at 1614.
supra note 167, at 1148 n.332 (asserting that
"proportionate interest representation defines procedural equality . . . [as] an
equal voice in government or an equal opportunity to influence decisions"). Guinier cites Diane Pindgerhughes for the view that
"pluralist theory presumes equivalence between all political and economic
Id. at 1123 n.225 (citing DIANE M. PINDERHUGHES, RACE AND ETHNICITY IN CHICAGO POLITICS 253-55
Id. at 1123 n.225 ("The model described here is essentially a pluralist one, because it remains the
dominant political science explanation of contemporary political participation.").
Id. at 1136.
id. at 1080, 1114, 1135, 1147.
id. at 1114, 1147.
See Lani Guinier,
No Two Seats: The Elusive Quest for Political Equality,
77 VA. L. REV. 1413, 1478 (1991) ("Disproportionate majority power is, in itself, so wrong that it delegitimates
Beyond the Republican Revival, supra note 3, at 1587 (rejecting the conception of the electoral process
"as a self-interested struggle").
See JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT 72 (Maurice Cranston trans.,
Penguin Books 1968) (1762) ("[T]he general will is always rightful and always tends to the public good; but
it does not follow that the decisions of the people are always equally right.").
See supra Part VI.
n179 Michelman is not alone among theorists of deliberative democracy in stopping
short of the epistemic claims.
Joshua Cohen explicitly avoids epistemic claims.
supra note 5, at 29 ("[W]hat is good is fixed by public deliberation, and not prior to it."). Bernard Manin also stops short in
On Legitimacy and Political Deliberation, 15 POL. THEORY 338, 367 n.35 (Elly Stein
& Jane Mansbridge trans., 1987) ("Given the appropriate procedural rules for deliberation, the better argument is
simply the one that generates more support and not the one that is able to
convince all participants."). Sunstein seems to get his feet wet.
See supra text accompanying note 32.
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Philosophy 111A Page