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Legitimacy and Epistemic Democracy

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Interview by Richard Marshall.

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Fabienne Peter is a Professor of Philosophy specializing in political philosophy, moral philosophy, and social epistemology. Here she discusses why democratic legitimacy is important, what kind of decision making it requires, the equality requirement, why collective rationality isn’t a requirement, what theory of legitimacy is required, whether political decision-making requires experts to make good decisions and the requirements of epistemic democracy. Then she discusses health equity and social justice, and the normative significance of our interactions with others

3:AM:  What made you become a philosopher?

Fabienne Peter: I took the scenic route to philosophy. I started out studying economics but ended up disappointed by what I perceived to be the intellectual limitations of the “economic way of looking at life”, to quote Gary Becker. I had lots of questions that I felt could not be properly asked within the disciplinary constraints of economics – questions about justice, for example, or about rationality. And the sort of questions that could be asked didn’t particularly interest me. I was much more interested in the optional philosophy courses that I was able to take as part of my undergraduate degree. They were mostly in the history of philosophy and in continental philosophy and I developed an interest in the work of Derrida, in particular, and also in the exchange between Habermas and Lyotard on the prospects of rational justification – I took the side of Lyotard,

My current interests started to form when I accidentally stumbled upon Rawls’ A Theory of Justice in a bookshop. Nobody had told me to read Rawls, so I didn’t know what I was reading (this was pre-Google). But the book had a very powerful impact on me: I felt that I had found what I was not getting from studying economics. Finally I was reading a text that had the theoretical ambitions of the best of economic modelling but that also managed to address an important topic and in an overall persuasive way.

In doing research on the themes of Rawls’ theory of justice, I discovered Amartya Sen’s work and that was another life-changer. Sen’s brilliant writings helped me see how my interests in philosophy related to my studies in economics and so I decided to embark on a PhD – still in economics, however. It did not occur to me at that point that I should perhaps switch disciplines. My – very naïve – thought was that Sen’s was the sort of economic theory that I was interested in. I realised only quite a bit later that I was primarily interested in the philosophical aspects of Sen’s work.

During my PhD, I was able to visit Harvard for a year and to work with Sen on his contributions to social choice theory and its significance for democratic theory. I was affiliated with the Economics Department and a teaching assistant for microeconomics. But I audited as many philosophy lectures as I could during that year. I was very impressed by Christine Korsgaard’s lectures, for example, because of her philosophical depth and breadth. I was a little less impressed by Derek Parfit’s lectures on utilitarianism – I felt that I already had had my fill of utilitarianism through normative economics. Rawls wasn’t lecturing that year. But I had the great privilege of discussing core ideas of my PhD-thesis with him. And I was able to audit a wonderful course co-taught by Sen, Nozick, and Maskin on social choice theory and justice. Maskin is an outstanding economist. But my impression was that his points didn’t stand a chance against the force of Sen’s and Nozick’s philosophical arguments.

It thus eventually dawned on me that I wanted to pursue an academic career in philosophy. But it took quite a few more years before I managed to transition out of economics and into philosophy. What attracts me to philosophy is how asking questions about the concepts that shape our thinking about issues is encouraged, not sanctioned. And philosophy enables us to ask such questions in a positive, productive way, one that can change how we think about those issues.

The first philosophical topic I worked on – starting with my PhD thesis – was democratic legitimacy and the question of how we should think about democracy and its normative requirements. I am still very much interested in political legitimacy and, at the metanormative level, in the question of how political decisions might be justified. But have also developed a range of other interests spanning political philosophy, moral philosophy, and epistemology.

Democratic Legitimacy

3:AM: Democracy is under pressure at the moment according to some prominent commentators. You’ve looked at what is required for democratic legitimacy. To begin with, why is democratic legitimacy important, and do you take it to be a distinct normative concept?

FP: As I understand it, a legitimate political decision is a decision that the relevant political body – say a government agency or the democratic collective as a whole – is entitled to make and that is binding for the citizens. Political legitimacy is thus a normative property that some political decisions have. Political decisions can have a whole range of further normative properties, of course, for example the property of being just – of giving people what is owed to them – or the property of being efficient – of leaving no room for making some people better off without making others worse off.

Democratic legitimacy, more specifically, is a normative property that some political decisions have in virtue of them having been made democratically. It is often thought that political legitimacy requires democracy. On this view, only political decisions that have been made democratically – either directly or that are indirectly supported by a democratic decision – can be politically legitimate. But it is conceivable that political decisions can be legitimate even though they have not been made democratically. I will say more about this below.

I think that the question of how political decisions should be made is an important normative question in its own right. Against this view, it can be argued that the property of legitimacy reduces to other properties. Many hold the view that legitimacy reduces to the property of justice. On this alternative view, a political decision is legitimate if (and, perhaps, only if) it is just. The entitlement to make decisions on behalf of the citizens derives from the justice of the decisions themselves and the citizens are bound – and perhaps only bound – by just decisions.

One way to support the claim that legitimacy reduces to justice is to argue that justice requires some form of democracy and that the requirements of democratic legitimacy are thus entailed by the requirements of justice. A legitimate democratic decision is one that has been made in the way that justice requires. Another way to support the claim is to argue – independently of democracy – that political bodies are only entitled to make just decisions and citizens are not bound by unjust decisions. On this view, it is a further question whether democratic decisions meet the requirements of justice and, therefore, whether such decisions are legitimate.

There are two main reasons for thinking that legitimacy cannot be reduced to or explained in terms of justice, however. The first relates to the normative domain of legitimacy that is distinct from the domain of justice and the second to legitimacy’s distinct normative requirements.

To start with the domain, political legitimacy, as I have defined it, is a property of political decisions and only of political decisions. By contrast, lots of things might or might just or unjust. A work contract might be unjust, for example, but the requirements of political legitimacy wouldn’t apply. So even if we can meaningfully ask both whether a political decision is legitimate and whether it is just, the domain in which legitimacy has a normative grip is much narrower than the domain in which justice has a normative grip. Given this difference in domain, and unless we think that talk of legitimacy is just a waste of time, we need an account of what explains it. Why does it matter how a political body goes about making its decisions? Why, if at all, fuss about legitimacy in addition to justice?

My view is that in order to answer these questions, we need to get clearer on the normative requirements of political legitimacy. First, note that what is normatively required for a legitimate political decision may not be required outside of the domain of legitimacy. For example, even if think that democratic decision-making is required for legitimate political decisions, we might also hold that naturalisation decisions on individual cases, which are legal decisions, should not be subject to a democratic vote. Second, and relatedly, what makes a political decision legitimate need not be what makes the decision just. For example, suppose we think that legitimacy requires that at least some political decisions are made democratically – say decisions to appoint members of parliament, or decisions on very controversial new laws. Such decisions are then legitimate in virtue of having been made democratically. But we should not expect that democratic decision-making also makes the decision just. We might, for example, see the legitimate democratic re-election of a member of parliament who has in the past advocated unjust policies. Political decisions may thus be democratically legitimate without being just.

A further question is whether just political decisions are necessarily legitimate. As we already saw, some answer affirmatively by denying any deep philosophical distinction between justice and legitimacy. But one need not deny the distinctiveness of legitimacy in order to answer affirmatively. On Rawls’ conception of justice, for example, a just decision is necessarily legitimate. This is so because justice, on his view, builds on fundamental democratic values – the normative requirements of democratic legitimacy – and a just political decision cannot violate the requirements of political legitimacy for that reason. There is thus no such thing as a just decision that has been coercively imposed against the will of (the majority of) reasonable citizens.

On alternative conceptions of justice, it is conceivable that the requirements of justice do not entail the requirements of legitimacy and that there are political decisions that are just but not legitimate. I am increasingly drawn to this view. It recognises not only that legitimacy and justice have distinct normative domains. It also recognises that legitimacy and justice impose distinct normative requirements – a legitimate decision need not be just and imposing the decisions that justice requires may be illegitimate.

3:AM:  At least part of democratic legitimacy requires some sort of decision making. There are two theories of democratic decision-making that you discuss – aggregative democracy and deliberative democracy. First, can you tell us what you take these two forms of democratic decision making to be?

FP: An aggregative theory of democracy focuses on the aggregation of individual preferences or beliefs. A theory of democracy that identifies democracy with majoritarian decision-making would be aggregative. On deliberative theories of democracy, public deliberation or discussion, whether it is in parliament or in the media, is seen as a key feature of democratic decision-making. Note that aggregation and deliberation need not be exclusive: on the theory of democracy that I favour, deliberation cannot replace aggregation because deliberation will often not lead to a consensus. If disagreement remains after deliberation, it will be necessary to rely on some sort of aggregative mechanism – e.g. a vote – to reach a decision.

3:AM:  You think the deliberative model is superior to the aggregative one don’t you? Why do you think the deliberative model is the better model?

FP: I don’t think that a purely deliberative model, one that aims at consensual decision-making, is attractive in the context of democracy. In fact, I think that such a model could only be oppressive; it would silence persistent reasonable disagreements. Instead, I favour a mixed model or theory and I believe that a theory of democracy that includes deliberation is superior to a purely aggregative model, on account both of its greater descriptive accuracy and its normative appeal. Democracy entails more than an equal right to vote and to be elected to political office. Extensive political rights and liberties such as freedom of speech and freedom of assembly are further features of democracy without which democracy couldn’t exist. In addition, I would claim, a sustainable democratic system also requires a democratic culture in which citizens are recognised and respected as equals in public life and which rests on a commitment to eliminate all forms of discrimination.

These further features of democracy support a deliberative process in which elections and other instances of democratic decisions-making – parliamentary decision-making and referenda, for example – are embedded and should be embedded. They make it possible for citizens to be publicly critical of certain policy proposals or existing laws or to raise public awareness of a certain social problem and they are essential to sustain a debate on the merits of those policies or laws or on the nature of the social problems that we face and the solutions that they might require.

In a purely aggregative model of democracy, these essential features of democracy are inadequately theorised and their normative significance is underplayed. The issue isn’t just a theoretical one. We see the implications of a failure to safeguard democracy in the richer sense in populist tendencies in contemporary politics and in the very poorly conducted Brexit referendum. A legitimate democratic decision isn’t just a decision that is supported by most votes, independently of how these votes have been generated – contrary to what the populists try to make us believe. A legitimate democratic decision is one that has been made from a set of alternatives that has survived deliberative scrutiny and that is compatible with securing democracy over time.

3:AM:  Democratic legitimacy seems to require political equality of some sort. What is the problem you call the “political egalitarian’s dilemma”?

FP: Yes, democracy is the political regime that is premised on the equal freedom of the citizens – the right to participate in political decision-making as an equal. A political egalitarian is someone who endorses this democratic commitment to political equality. A critic of democracy, by contrast, will reject the claim that political equality is a fundamental political or moral value. Although I am a political egalitarian of sorts, fleshing out what political equality requires is more difficult than many people seem to think.

On the one hand, there is the problem that political equality is threatened by social and economic inequalities. Very wealthy citizens have opportunities to influence political decision-making that poor citizens lack, for example. Similarly, citizens who are socially marginalised on grounds of gender or sexuality, ethnicity or race, or other features, may not be heard as easily as citizens who are in the political mainstream. Seen in this light, it seems that the requirements of political equality have to extend beyond the narrowly political realm and include requirements of social and economic equality as well. Norman Daniels has highlighted this problem when he argued that Rawls’ claim that the political liberties should be guaranteed their fair value would have far greater distributive implications than the difference principle, the principle of distributive justice that Rawls put forward.

On the other hand, there is the problem that comprehensive requirements of social and economic equality may prove controversial and that imposing such requirements on society clashes with the core principle of democratic legitimacy that controversial laws and policies should be subject to democratic deliberation and decision-making. Seen in this light, it seems that the requirements of political equality should be understood fairly minimally so as to not preclude democratic decision-making on the legitimate extent of social and economic inequalities.

What I call the ‘political egalitarian’s dilemma’ arises from the tension between these two desiderata. The first horn of the dilemma is that securing real, not merely formal, political equality undermines democratic legitimacy by pre-empting democratic deliberation and decision-making for too many controversial issues. The second horn of the dilemma is that avoiding pre-empting democratic deliberation and decision-making in this way undermines democratic legitimacy because merely formal political equality implies that many citizens will not be able to participate as equals in democratic deliberation and decision-making.

3:AM:  Collective rationality is often thought of as another requirement of legitimacy – but you disagree don’t you. Why aren’t rational outcomes essential for democratic legitimacy? Is this a strike against the assumptions of economic theories of democracy?

FP: Yes, my objection to the requirement that legitimate democratic decisions must be rational decisions is indeed to the way in which rationality is understood in rational choice theory and in economic theories of democracy. The theories I have in mind are those that claim that democratic legitimacy requires consistent social (aggregated) preferences. For example, Kenneth Arrow’s famous impossibility theorem only raises a problem for the legitimacy of democratic decision-making if one assumes that consistent social preferences are required for democratic legitimacy. His very elegant theorem shows that there is no democratic decision-making mechanism that satisfies four relatively weak axioms – conditions that capture minimal democratic values – and that is guaranteed to yield consistent social preferences at the same time. Notably, we cannot rule out that democratic decision-making – majoritarian decision-making, for example – results in cycles. We have a cycle if a policy alternative or candidate A is socially preferred to B (a majority prefers A to B), B is socially preferred to C, and C is socially preferred to A. Such social preferences are obviously inconsistent. I am not questioning Arrow’s theorem as such, of course. My question is, rather, whether inconsistent social preferences necessarily undermine the legitimacy of a democratic decision.

And my answer is no. One of Arrow’s main reasons for imposing the rationality requirements is that cycles are vulnerable to manipulation: whoever has agenda-setting power can ensure that the outcome of the democratic decision-making process corresponds to their own preferences. For example, if they prefer A over B and C, they can make sure that there is no vote on A versus C, because such a vote would result in C being chosen. I agree, of course, that if democratic decision-making is manipulated in this way, this undermines the legitimacy of the decision made. But ruling out manipulation does not require imposing consistent preferences; ruling out manipulation requires that the democratic decision-making process is designed in such a way that it is robust against attempts to manipulate its outcome. The agenda-setting process, for example, should be transparent and open to deliberative scrutiny.

In addition, imposing consistent social preferences is also not desirable in its own right. First, imposing consistency over time – across different instances of democratic decision-making – is not desirable because the context is very likely to change and this implies that what appears to be an inconsistency is much more likely the result of an inadequate individuation of alternatives. Even imposing consistency at any one time, for a particular instance of democratic decision-making, is not desirable in my view, however. If the alternatives that are being deliberated and the decision that is eventually made among them have been selected in a robustly democratic process, then it does not undermine democratic legitimacy if there is, hypothetically, an alternative agenda that would yield a different outcome.

In short, my main reason for rejecting the rationality requirement, insofar it is understood as a requirement that democratic decisions be based on consistent social preferences, is that what determines the legitimacy of democratic decisions is the procedure through which the decision has been made, not the outcome that the procedure generates. In my book on democratic legitimacy, I call this view pure proceduralism about democratic legitimacy.

3:AM: As you say in another context, bad actions, namely, actions that appear to be done for reasons that are not good reasons, seem ubiquitous. In the democratic context, do we get so much wrong so often by not requiring collective rationality but by being dependent on agreement, rational or not?

FP: This question raises an issue much of my recent work has been grappling with. The issue is this: what is the right theory of justification in the political context and how can we explain the significance of some form of agreement – of mutual endorsement – for political justification? There is a puzzle here. There are many contexts in which we might want to say that endorsement is less important than getting it right. Many moral philosophers, for example, maintain that the moral justification of actions does not vary with what we believe or take to be justified. If an action is, in fact, the morally right thing to do, that is all the justification that is required. Some epistemologists hold a similar view about the justification of belief. But while the dominant view in epistemology today rejects factualism about epistemic reasons, it still holds that what drives the justification of belief is the evidence that you have or the reliability of your belief formation process, not merely the consistency with your other beliefs. So even on that view, getting it right is normatively more important than your endorsement of a belief.

Rawlsian political philosophy starts from the premise that some form of mutual endorsement of political decisions (and of principles of justice, of course) is normatively more important than getting it right. As it happens, I regard Rawls’ theory of political justification as among the key contributions that his work has made and my prediction is that this contribution outweighs the substantive theory of justice that he has offered and for which he is best known. But because Rawls’ theory is premised on the normative significance of mutual endorsement, it doesn’t help us much with the question of why mutual endorsement is normatively more important than getting it right in the political context. So the puzzle is, in what contexts and why does endorsement become normatively significant?

While Rawls’ work has very much influenced my thinking about political legitimacy, as a result of grappling with this puzzle, I have gradually moved away from a purely Rawlsian view. The view I hold now, which differs in some respects from the one I articulated in my Democratic Legitimacy book, is roughly the following (cf. my papers on The Epistemic Foundations of Political Liberalism, on The Epistemic Circumstances of Democracy and on Epistemic Constraints on Political Justification, for example; I am currently working on a book on this topic).

My starting-point is that getting it right matters for political legitimacy. Political decisions that involve atrocities cannot legitimately be made when sufficiently robust knowledge is available that they are atrocities. The problem is, however, that most political decisions have to be made in circumstances where we lack sufficiently robust knowledge of what the right decision is. If such knowledge is unavailable, disagreements are not only likely, but also normatively significant if the disagreements are compatible with all parties to the disagreement responding rationally to the limited evidence that is available. Normatively significant disagreements will undermine the legitimacy of a political decision that is subject to such a disagreement. And if getting to the right decision is epistemically out of reach, only political decisions which are supported by some form of agreement or mutual endorsement can be legitimate. Legitimacy, in those epistemic circumstances, can be secured in two main ways: either the political decision itself is supported by some form of agreement or mutual endorsement or a decision-making procedure which is suitable to resolve normatively significant disagreements is supported in this way.

So, in answer to your question, yes, it is a problem for political legitimacy if political decisions are made that are in conflict with what we know would be the right thing to do. But sometimes we only have this knowledge in hindsight or in a form that is not easily shared and not sufficiently robust as a basis for political decision-making. Democratic decisions that are made on the basis of all participants responding rationally to the limited evidence that is available, are not illegitimate even if, in hindsight, we learn that they were the wrong.

3:AM:  I guess this raises the issue as to whether political decision-making requires experts to make good decisions. This is a question addressed to democrats but presumably it’s one that is important in the long run for non-democratic models too isn’t it?

FP: Yes and yes. Expertise is required for legitimate political decision-making, whether it is in a democratic context or not. For reasons just explained, in the epistemic circumstances of politics, expertise is not normally sufficient to identify which decisions we should make. The complexities involved in making decisions about policies and laws make it likely that expertise will run out and that the question ‘which is the right decision?’ remains epistemically underdetermined. In those – normal – circumstances, some other form of political decision-making is required for legitimacy, for example democratic decision-making. But the available expertise should still not be ignored in a legitimacy-generating deliberative process, as it will help to identify and eliminate those decisions that, in the light of what we do know, would be the wrong choices.

3:AM: You are one of the defenders of ‘epistemic democracy’. What is the significance of epistemic considerations in a theory of democracy?

FP: Theories of epistemic democracy all share the idea that epistemic considerations matter for the legitimacy of democratic decisions or for the justification of democracy as a political regime. They differ, however, in how they interpret this idea. Most theories of epistemic democracy are instrumental in nature. A good example for such instrumental theories are those that build on John Stuart Mill’s somewhat optimistic claim that “the market place of ideas” – free public deliberation – helps eliminate wrong opinions and fosters the formation of correct beliefs about what should be done. Another good example are epistemic theories of democracy that build on the Condorcet jury theorem, which says that, given certain conditions, a larger group is more likely to make the right decision than a smaller group. More recent instrumentalist theories are those of David Estlund and Hélène Landemore.

What the instrumentalist views of epistemic democracy have in common is that they build on an argument that aims to show that while political legitimacy derives from making the right decisions, this does not entail that political decisions should be made by experts – there are reasons to think that democratic decisions either outperform decision-making by experts or at least that they will not be worse than decisions made by experts.

I think that they are various problems with the instrumentalist theories and favour a non-instrumental or proceduralist theory. On proceduralist theories, epistemic considerations matter in the justification of the democratic procedure, but they do not play a role directly in the justification of the decisions made through the democratic process. As explained above, I think that epistemic considerations matter for the explanation of normatively significant disagreements and in determining what counts as a rational response to those disagreements, and, in this way, for the explanation why democratic decision-making procedures may be required for political legitimacy.

3:AM:  Health equity is another area of interest for you and the ethical issues that arise from this. I guess some would ask why, if at all, should a concern with health equity be singled out from the pursuit of social justice in general?

FP: I have to say, first, that I haven’t worked on justice in health in many years. As a postdoctoral researcher, I was involved in a large, interdisciplinary project on social inequalities in health based at the Harvard School of Public Health and run by Amartya Sen, among others. I learned a lot from this project about the extent and the possible causes of social inequalities in health – inequalities in health status (e.g. the mortality rate), not access to health care, that are strongly correlated with, and possibly caused by, differences in social status (income and wealth, for example, or with career status) – and the project also taught be a lot about the many faces of injustice, to cite Judith Shklar.

In answer to your question, I don’t think health status should be singled out in the pursuit of social justice. Health is, of course, an important good, as are economic security, education, and the respect one enjoys from others, etc. But it is not necessarily more important than other goods – there is nothing wrong with some of the trade-offs we make that involve sacrificing our health in the pursuit of other goods. What I discovered working on the health equity project, however, is that health status is not just an important concern of social justice, health inequalities are also often a good indicator of social injustice and can be a lens through which we can understand what social justice would require.

3:AM:  Can existing theories of justice provide an adequate account of health equity or do we need to rethink what is unjust about inequality in this area?

FP: Because I have not worked on health equity in many years, I cannot comment on the current state of the debate. But two issues struck me when I was working on this topic. The first was that much of the debate on justice in health was focused on justice in access to health care. Health care is, of course, an important resource and if some people lack access to health care, this can be a problem of justice. But the empirical literature shows that access to health care is only one factor, and often not the most important one, in explaining differences in people’s health status. Access to health care can thus not be the only concern of a theory of health equity; inequalities in health status, and their causes, are a separate concern.

Second, I noticed that existing theories of justice in health tended to focus directly on the question of how much equality in health status justice requires. But in light of the literature on social inequalities in health, my impression was that those inequalities in health that are of particular concern from the point of view of justice are those that are caused by social injustice. For example, it is very sad, but probably not unjust, if one person dies at 50 because of random health complications that could not have been prevented in an environment where the average life expectancy is 80. But if this person dies at 50 because in his – socially deprived – environment the life expectancy is not 80, as it is for better off people in this town, but only 50, then this is not only sad, but also unjust. Similarly, one explanation of the fact that we seem to be less concerned with the fact that women tend to live longer than men is that they seem to live longer despite persisting gender injustices that disadvantage women. In other words, my sense was that a theory of justice in health should not focus on differences in health status directly, but should, instead, be embedded in a more general theory of social justice. Health status thus matters indirectly for justice, because health status is one way in which social injustice manifests itself in people’s lives.

3:AM:  Throughout your work there seems to be weight thrown onto the normative significance of our interactions with others: as a take home could you summarise your ethical principles and their genealogy?

FP: Oh dear, I don’t think I can – I wish I had that level of clarity about my own thoughts. But it’s an interesting question. So let me say a few random things in response.

I started to get interested in problems of justice when I was a student in economics – I thought it was striking that (distributive) justice was more or less absent from the curriculum and that all the attention was on efficiency and economic growth. As I already mentioned, my thinking about justice has been strongly influenced by Rawls’ work on this topic. And one key insight from Rawls’ theory of justice that has shaped my thinking in the past is that justice is not just about who gets what, but also about how we should relate to each other. I suppose it is that latter idea that your question centres on. There is now a large and still growing literature on relational conceptions of justice. I have not contributed to that literature, however, and I am less sure than I used to be about what to think about this topic.

In my own recent work I have, instead, focused on the question of how our interactions with others impact on what counts as a justified action or belief, especially in the presence of disagreements. I don’t have a set of ethical principles to offer, but I am exploring how interacting with others changes the type of justification that is required and puts pressure on otherwise justified actions or beliefs. The issue is discussed in the epistemology of disagreements, for example: a disagreement with someone else might undermine the justification you originally had for your belief. I am also interested in a related phenomenon in the practical context: how interactions with others, and practical disagreements, in particular, seemingly put pressure on otherwise justified action. If I come up with a good set of principles that captures how our interactions with others might impact on the justification of our beliefs and our actions, I’ll let you know.

3:AM:  And finally, for the readers here at 3:AM, are there five books you can recommend that will take us further into your philosophical world?


Political Liberalism

John Rawls, Political Liberalism – I side with those who read this book as a theory of political legitimacy.

The Sources of Normativity

Christine Korsgaard, Sources of Normativity – An impressive development of Rawlsian themes in moral philosophy and metaethics and, like all of Korsgaard’s writings, exemplary for its historical depth. In my reading, this book, together with Korsgaard’s papers from the 1990ies, sparked the current interest in reasons.

The Morality of Freedom

Joseph Raz, The Morality of Freedom – I have greatly admired this book ever since I first read it. It is still the main alternative to Rawls’ theory of political legitimacy. I used to think it was completely wrong about political legitimacy. I now think that it is only half-wrong and admire it even more.

Democratic Authority

David Estlund, Democratic Authority – The standout recent contribution to democratic theory. I wish I could write a book as good as Dave’s.

Epistemic Authority

Linda Zagzebski, Epistemic Authority – A fascinating attempt to spell out the notion of epistemic authority, drawing on Raz’ conception of political authority.

I am finding it very difficult to narrow the list to five. Other books that have greatly influenced my thinking include books by Jerry Gaus, Onora O’Neill, Tim Scanlon, Derek Parfit, and Jean Hampton.

The Autonomy of Morality

But if I could add just one more, it would be Charles Larmore The Autonomy of Morality. This book changed my mind about the relation between autonomy and morality – not many books have had as much of an impact on my thinking as this one.


Richard Marshall is still biding his time.

Buy his new book here or his first book here to keep him biding!

End Times Series: the first 302

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[Postcard ] | The Bad and the Ugly, by Kyle Paoletta

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Acquiring works for the Museum of Bad Art

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Re-engineering humanity

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I had the pleasure and honor of writing the foreword to Brett Frischmann and Evan Selinger’s new book, Re-engineering Humanity. The book is out today, from Cambridge University Press. You can find more information, and ordering links, here and here. And here is my foreword:

Human beings have a genius for designing, making, and using tools. Our innate talent for technological invention is one of the chief qualities that sets our species apart from others and one of the main reasons we have taken such a hold on the planet and its fate. But if our ability to see the world as raw material, as something we can alter and otherwise manipulate to suit our purposes, gives us enormous power, it also entails great risks. One danger is that we come to see ourselves as instruments to be engineered, optimized, and programmed, as if our minds and bodies were themselves nothing more than technologies. Such blurring of the tool and its maker is a central theme of this important book.

Worries that machines might sap us of our humanity have, of course, been around as long as machines have been around. In modern times, thinkers as varied as Max Weber and Martin Heidegger have described, often with great subtlety, how a narrow, instrumentalist view of existence influences our understanding of ourselves and shapes the kind of societies we create. But the risk, as Brett Frischmann and Evan Selinger make clear, has never been so acute as it is today.

Thanks to our ever-present smartphones and other digital devices, most of us are connected to a powerful computing network throughout our waking hours. The companies that control the network are eager to gain an ever-stronger purchase on our senses and thoughts through their apps, sites, and services. At the same time, a proliferation of networked objects, machines, and appliances in our homes and workplaces is enmeshing us still further in a computerized environment designed to respond automatically to our needs. We enjoy many benefits from our increasingly mediated existence. Tasks and activities that were once difficult or time-consuming have become easier, requiring less effort and thought. What we risk losing is personal agency and the sense of fulfillment and belonging that comes from acting with talent and intentionality in the world.

As we transfer agency to computers and software, we also begin to cede control over our desires and decisions. We begin to “outsource,” as Frischmann and Selinger aptly put it, responsibility for intimate, self-defining assessments and judgments to programmers and the companies that employ them. Already, many people have learned to defer to algorithms in choosing which film to watch, which meal to cook, which news to follow, even which person to date. (Why think when you can click?) By ceding such choices to outsiders, we inevitably open ourselves to manipulation. Given that the design and workings of algorithms are almost always hidden from us, it can be difficult if not impossible to know whether the choices being made on our behalf reflect our own interests or those of corporations, governments, and other outside parties. We want to believe that technology strengthens our control over our lives and circumstances, but if used without consideration technology is just as likely to turn us into wards of the technologist.

What the reader will find in the pages that follow is a reasoned and judicious argument, not an alarmist screed. It is a call first to critical thought and then to constructive action. Frischmann and Selinger provide a thoroughgoing and balanced examination of the trade-offs inherent in offloading tasks and decisions to computers. By illuminating these often intricate and hidden trade-offs, and providing a practical framework for assessing and negotiating them, the authors give us the power to make wiser choices. Their book positions us to make the most of our powerful new technologies while at the same time safeguarding the personal skills and judgments that make us most ourselves and the institutional and political structures and decisions essential to societal well-being.

“Technological momentum,” as the historian Thomas Hughes called it, is a powerful force. It can pull us along mindlessly in its slipstream. Countering that force is possible, but it requires a conscious acceptance of responsibility over how technologies are designed and used. If we don’t accept that responsibility, we risk becoming means to others’ ends.

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Solum on Virtue as the End of Law

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Lawrence B. Solum (Georgetown University Law Center) has posted Virtue as the End of Law (9 Jurisprudence 6-18 (2018)) on SSRN.  Here is the abstract:


This article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance of these conditions. The human excellences (or virtues) are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prostitution. If prohibition is counterproductive, then human flourishing may best be supported by a regime of decriminalization or legalization, accompanied by programs of education, treatment, and support.

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New Music Roundup

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At the beginning of the year, I quietly committed myself to trying to do a quarterly rundown of my favorite new music releases. In characteristic fashion, I screwed this up from the jump, and didn’t get to the first installment until last night because of writing deadlines and travel. Because of that, I’m including early-April releases here, too. I’m only offering the briefest of notes on each; I’ll have more to say about those that end up among my year-end favorites at, well, the end of the year. Consider comments an open forum on these or any other new releases that have caught your ear so far.

Full disclosure: A few of the artists listed here are friends of mine. I have tried not to let that twist my judgment.

I begin outside the formal list, with something I missed in 2017 – Joan Shelley’s incredible self-titled record. This album didn’t make it into my ears last year, but if it had it easily would’ve been a top-10 record. Stunning vocals and writing. Here’s her doing the lead track:

On to my favorites from January to early April — at least from what I’ve heard so far. These are not in any particular order.

H.C. McEntire — Lionheart. McEntire fronts the great North Carolina-based band Mount Moriah, and her debut solo record sounds a lot like a Mount Moriah record. And that’s just great by me.

Courtney Marie Andrews — May Your Kindness Remain. Andrews is one of the young Americana scene’s true shining stars. Incredible voice and fantastic songcraft. The titular track of this record is my favorite song of the year so far.

Cardi B — Invasion of Privacy. Cardi B’s debut record arrived with so much hype that it was almost impossible to imagine it would live up to it. It does. A banger of a rap record that finds Cardi hosting established hip-hop stars like Migos and Chance the Rapper and upstaging them all. This one’s going to be all over year-end best-ofs.

Field Report — Summertime Songs. Chris Porterfield, who fronts the Milwaukee-based alt-folk four-piece Field Report, has, for years, been one of my favorite constructors of lyrical landscapes. The new record reinforces that impression while also pushing the band in new sonic directions. It is fantastic.

Dead Horses — My Mother, the Moon.  The core of Dead Horses, another Milwaukee-based band, is singer-guitarist Sarah Vos and bassist Dan Wolff. Their new record is their second produced by Ken Coomer, formerly of Wilco, and is an excellent snapshot of their thoughtful, delicate breed of Americana.

Count This Penny — A Losing Match. Knoxville wife-husband duo Amanda and Allen Rigell, who record as Count This Penny, often get called “throwbacks,” mostly because their gorgeous writing and harmonies draw from the deep well of classic folk/Americana duos of the past. But there is also something that feels very of-this-moment in their new record, which draws hard from dark places as it churns toward a light.

Meshell NdegeocelloVentriloquism. Ndegeocello has long defied categorization, but has consistently been an extraordinarily compelling artist. Ventriloquism is a covers record of sorts that finds her taking on and reinterpreting some true icons of the 80’s and 90’s music scene, from TLC to Prince. Great stuff. Her read of Prince’s “Sometimes It Snows in April” is my favorite from the record.

Lucy Dacus — Historian.  This one is a critical darling, and rightly so. Dacus, a 22-year-old indie rocker, has created what’s probably the standard-bearer so far this year within the genre. Smart, incisive songwriting set against a great sonic backdrop that vacillates between the lush, the grunge, and the churning. Absolutely one of my favorites of the year so far.

S. Carey — Hundred Acres. Eau Claire, WI’s Sean Carey got his first major exposure as the drummer in Bon Iver (he still plays in the band), but he’s carved out a really unique place for himself under his own moniker. When you get into an S. Carey record, the things that almost invariably stand out the most are the lushness of the compositions, the lyrics’ deep roots in the natural world and its wonders, and the delicacy of Carey’s voice. This one doesn’t venture far from those expectations, but the formula works so well that there’s no reason it should.

Andrew Bryant — Ain’t It Like the Cosmos. Bryant is half of the band Water Liars, an Oxford/Water Valley, Mississippi-based rock duo. (Justin Peter Kinkel-Schuster is the other half.) I love Water Liars (“Tolling Bells” is one of my favorite songs of the decade), and both Bryant and Kinkel-Schuster make compelling records on their own, too. This one contains a great set of songs that ruminate on fatherhood, work, and, for lack of a better term, Southernness. Water Liars, and Bryant’s and Kinkel-Schuster’s solo stuff, never gets as hard-driving as some Drive-By-Truckers does, but I think there’s stuff here that would appeal to that crowd.

Marie/Lepanto — Tenkiller. Speaking of Justin Peter Kinkel-Schuster, this year the other half of Water Liars teamed up with Will Johnson (from Centro-Matic and Monsters of Folk) to form the duo Marie/Lepanto, which takes its name from the two towns of the same name in eastern Arkansas that share an I-55 road sign. (I drove past it last week and can confirm.) The record is heavily rooted in alt-folk traditions, and songwriting duties are split roughly evenly between the two. This is a great driving record.

Mary Gauthier — Rifles and Rosary Beads. The folk stalwart Gauthier gives us gut punch after gut punch here, drawing from the stories of military veterans to build an emotionally nuanced and poignant record about war, coming home, and what comes next.

Kacey Musgraves — Golden Hour. I’m not interested in dumb debates about what constitutes “real” or “authentic” country. All that I know is that Kacey Musgraves is one of many people doing country music really well right now. She is a tremendously smart writer and a great vocalist. This new record is just as good as her first two major-label releases — and that’s saying something.

Frank Lee and Allie Burbrink — Roll On, Clouds. Fans of clawhammer banjo and old-time bluegrass will probably be familiar with Frank Lee — whether the things he’s done under his own name or with his band, The Freight Hoppers. On this new record, he and Allie Burbrink collaborate for some lovely duets that will make for some great front porch listening come summertime.

A few others that I’ve liked but not totally fallen for (yet): Wye Oak — The Louder I Call, The Faster It Runs; Superchuck — What a Time to Be Alive; Yo La Tengo — There’s a Riot Going On; I’m With Her — See You Around.

Finally, here are four records that aren’t out yet but that I’m really looking forward to.

1. Erin RaePutting On Airs. I’ve heard the whole record (Erin’s manager is a friend), and it’s absolutely fantastic. Going to be high — very high — on my year-end list, I expect. Out June 1.

2. John Prine‘s new album, The Tree of Forgiveness, comes out this Friday. I’ll be in New York for the release show at Radio City. Can’t wait. NPR is previewing the album in full here.

3. Kamasi Washington‘s sprawling jazz masterpiece The Epic was my favorite record of 2015. He released an EP last year and is back this year with a new double-LP. You can preview two tracks here via The Fader. Out June 22.

4. Buffalo Gospel‘s On the First Bell comes out next month. We Can Be Horses, the Milwaukee alt-country outfit’s last record, is one of my favorite Midwestern albums of the past decade. Looking forward to this one, too. Keep an eye on their social media for further album info. Meanwhile, they put out a little EP late in 2015 that features this song that I adore. Out May 4.


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Presidential Impeachment in Partisan Times

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I’ve posted an essay, “Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change” to SSRN.  The argument of the essay runs as follows.  The unconventional presidency of Donald Trump has made presidential impeachment once again an issue of national concern.  But do legal academics have a good grasp on what happened in past presidential impeachments with respect to the meaning of the constitutional standard (“high crimes and misdemeanors”)?  In this essay, I argue that prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton.  The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change. 

Impeachment scholarship has been predominantly originalist.  There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.”  The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses.  Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law.  Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different.  Contrary to prior legal scholarship, I argue that due to the rise of organized political parties, a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

I then use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.”  The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of “developmental” analysis.  Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments.  These baselines then form the new context going forward for evaluating the constitutionality of official action.

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