A Shared "Solution" to a Problem Basic to Both Epistemology and Political Theory

 

A couple of hundred years into the Common Era, a skeptical philosopher named Sextus Empiricus wrote this:

Those who claim for themselves to judge the truth are bound to possess a criterion of truth. This criterion, then, either is without a judge's approval or has been approved. But if it is without approval, whence comes it that it is trustworthy? For no matter of dispute is to be trusted without judging. And, if it has been approved, that which approves it, in turn, either has been approved or has not been approved, and so on ad infinitum.

This claim that a "vicious circle" or "wheel" is utterly destructive of human claims to knowledge was popularized in the late 16th Century by another important skeptic, the essayist, Michel de Montaigne. As famously paraphrased by (one of my old grad school professors) Roderick Chisholm in 1973, Montaigne's "Problem of the Criterion," was this: 

To know whether things really are as they seem to be, we must have a procedure for distinguishing appearances that are true from appearances that are false. But to know whether our procedure is a good procedure, we have to know whether it really succeeds in distinguishing appearances that are true from appearances that are false. And we cannot know whether it does really succeed unless we already know which appearances are true and which ones are false. And so we are caught in a circle. 

For example, in order to have faith in anything like Descartes' trust that "clear and distinct"  ideas can be trusted, we must have prior knowledge that the clear and distinct notions are always true. But to know THAT, we'd have to already know some truths. And the skeptical claim is that we can't know any truths without first having some procedure by which to test beliefs. So, in order to get the method, we need to have access to some truths, but in order to get the truths, we first need a trustworthy method.#  

Why bring any of this up in a blog devoted to political theory? Well, it seems to me there is a closely analogous problem for political authority. It too has been around forever, but it was made famous by Carl Schmitt in the 1920s. Here, the question isn't What do we really know? but rather What really has the force of law?  

 

In this arena, we can also find those who, like Descartes, believe that we must get the procedure--or method--right to be comfortable with the authority (rather than the truth) of the edict. So, a proceduralist will be inclined to say that we don't have a legitimate law unless all the correct procedures, starting with the constitution if there is one, have been carefully followed. But the decisionist (like the particularist in epistemology) will be quick to point out that a decision about the authority of the constitution (and/or other "norms" relied on) will then have to be assumed. After all, what makes this constitution so special? If it's claimed that the right procedures were followed when it was enacted, what made those procedures the "right" ones? 

So, Schmitt and other decisionists held that at some point there will be no alternative but to confess that a decision simply had to be made. On this view, ultimately, nothing but decision-makers and their decisions have any real force.## And, among epistemologists, Chisholm--although he maintained that any solution to the problem of the criterion must assume what it seeks to prove--was a "particularist," feeling (as I do) that we just do know certain commonsense things.###

I think we can put the analogy this way: 

• Rejection of Normative Primacy

1. Both Schmitt and Chisholm challenge the idea that a universal, abstract system (be it legal norms or epistemological criteria) can be established in a vacuum. They argue that such a system is, in fact, dependent on prior, foundational acts or beliefs.

• The "What" Precedes the "How"

1. Pursuant to Schmitt's Decisionism, the sovereign's decision on the "state of exception" comes first. This decision is not based on existing law; it creates the legal order. The content of the law (the "how") is a result of the sovereign's ability to act and establish order (the "what"). As Schmitt famously stated, "Sovereign is he who decides on the exception." The decision thus takes precedence over the norm of law.
2. According to Chisholm's Particularism, the epistemologist begins by identifying what we know (the "what") and then uses those instances of knowledge to formulate a general theory of how we know (the "how"). He argues against the "methodist" position, which insists on first defining the criteria for knowledge before claiming to know anything. Chisholm's particularist approach starts with the immediate, undeniable experience of knowing and uses it as the bedrock for all subsequent theorizing.

To this bushel of striking similarities, we probably can add that there are particular "goods" associated with appropriate moves in both epistemic and political realms. Whether each is an intrinsic good or both are only instrumental (likely prudential) values, need not be investigated here. But it does seem clear that it's somehow better both (i) to have beliefs that are true; and (ii) to obey only those ostensible governmental commands that are legitimate.

With all this going for our analogy, one may wonder why it has received so little attention before now. (No doubt it will be assumed by my devoted readers that this must be attributed to the unmatched brilliance of the blogger. But, alas, I don't think that's the reason.) I believe it's because there are also crucial differences between particularism and decisionism as solutions to their respective criterion crises.

First, while only one of the solutions is essentially about individual knowledge, they are both inextricably connected with it...and only particularism gives any assistance on that front. What I mean is this: Even if you have settled on decisionism as the basis for legal legitimacy, you will need to know just whose decision is the one to attend to. Suppose a dozen individuals or groups are claiming to be the appropriate deciders: it doesn't seem like the belief that it's this one rather than that is much like "I am" or "2 + 2 = 4." With particularism, we have our "intuitions" regarding what seems true to guide us, but there may not be any reliable ones in the political realm. In a word, while it makes sense to be comfortable that "These are my hands" is true just because it seems to be, it also seems that we need criteria for settling on the appropriate decider.

Second, some of us may feel there is an additional "good" in play when it comes to political decision-making. (I certainly do.) It involves a recognition of the intrinsic value of self-government. Because of that factor, an autocratic decision--legitimate or not, fostering the overall good of the polity or not--must always lack what authentic democracy can provide. I suppose Cartesians may hold that what can only be provided by God's banishment of deceiving demons or dreams, is equally important. But that is a matter that remains within the same epistemic wheel. The value provided by real democracy seems to me irrespective of whether or not only democracy can give a polity "legitimate authority."

Another way of putting this is that while the decisionist approach may be thought to provide a solution to the problem of legitimacy, it does nothing for any goals involving other sorts of values. (And this is even if we ignore justice, as I am inclined to do myself). The value of democracy, in my view, is not that it provides a more solid grounding for law, a role that arguably can--perhaps even must if Schmittians are right--be filled by a singular, founding decision, but rather that it provides the additional intrinsic good of self-governance, of most people getting what they want when the wants of each person are treated equally. And that is something that decisionism cannot do.

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#Obviously, this isn't the place for a detailed discussion of the problem of the criterion. But for those interested in the issue, I recommend a terrific paper by (another old Professor of mine) James Van Cleve called "Foundationalism, Epistemic Principles, and the Cartesian Circle" (1979).

##Schmitt actually backed away a bit from his earlier, strict decisionism in the mid-thirties. In his On the Three Types of Juristic Thought he argued that legal theory depends on "concrete order"; i.e, that something like social practices, institutions,or normal situations must underlie applicable decisions, making them not purely extrinsic to all norms. However, his view remained antithetical to Hans Kelsen's picture, according to which every legitimate edict must ultimately be deriveable from what Kelsen called a Grundnorm or ultimate rule.

###My own views on the purely epistemological matters discussed here can be found in this paper.

Gerrymandering is Possible Because Basing Political Representation Purely on the Geography of Subdivisions is a Bad Idea

Gerrymandering is in the news. As I'm sure my readers realize, cutting up a territory in (allegedly) weird ways is arguably anti-democratic, whoever does it. I inserted "allegedly" above, because what constitutes a fair, non-weird district is controversial. Ensuring, for example, that Blacks get as few representatives as possible is clearly discriminatory, but whether doing that to rich people or bookworms or landtaxers is something that should also be prohibited may not seem so clear. And suppose that sort of unfortunate outcome happens by mistake, say as the result of a disinterested computer program making its cuts "randomly":  is that still a type of unfair discrimination that should be illegal? It does seem obvious that whether or not gerrymandering to maximize the number of representatives belonging to a particular political party is (a) illegal, or (b) a response to what the other party has already done, there's a good chance that it is destructive of the fundamental tenet of both state and Federal democracy that requires that everybody's vote be treated equally. Unfortunately, it seems always to be quite difficult to prove that a principle of that type has been violated.#

Consider a hypothetical country (I'll call it "Simplistan) that, like the U.S., is a Federal polity; i.e., it contains a bunch of subsidiary jurisdictions, divided geographically, on there, they are called "provinces." Suppose Simplistan is also similar to the U.S. in that it separates--at least to some extent--its executive and legislative functions on both province and national levels. But there's a fundamental difference too. While many scholars think the number of representatives in the U.S. Congress has become insufficient over time because of population growth, Simplistan sees things differently. Its constitution doesn't consider having provinces send a lot of representatives to its national legislature (its "Federal Assembly") to be a good thing. 

You see, Simplistan's founders believed that the more legislators available to muck around with lawmaking, the worse the result will be. Not only would the process be more inefficient and expensive in their view, but the result will be more confused. Therefore, while their founding mothers agreed that every citizen in each province must be represented in their Assembly, they also insisted that, so long as the executive in each province is handled by a different individual, giving each only one national representative is best. 

Obviously, Simplistanians can't have any problems with gerrymanders because their provinces aren't cut up at all.## It might seem though, that their country is terribly undemocratic, because it sends the same number of representatives (viz., 1) from each province, whether that subsidiary jurisdiction is big or small, densely populated or mostly forest. As suggested, it is clearly undemocratic to give each province one vote in the Assembly if some provinces are much more populous than others, because authentic democracy requires that each resident--and so each vote of the general populous--be treated equally. 

Both the majority of Simplistanians and their Constitution recognize this fundamental principle of democracy, but instead of handling it by having the more populous provinces send more representatives, they weight the authority of all the representatives in their Assembly. The more populous the province, the more vote-weight its representative gets in Assembly activities. 

So, every few years there is an election in Simplistan in which each province elects one Executive and one Assemblyperson. The math here is unsurprisingly simple, and it would almost make for a good arrangement if one individual were actually capable of reflecting the views of hundreds of thousands--perhaps millions!--of constituents. But even if the Assembly members were afforded large staffs in sizes that also reflect the number of votes received (and each member were also some incredible combination of deep human empathy and AI-like comprehensiveness and speed), there would be a remaining problem. Assembly activities don't consist solely of voting and constituent service. There's also speechmaking, committee work, and various other sorts of deliberative activities. It would be extremely difficult--if not impossible--to mete out all of the various types of "legislative authority" in anything like mathematically appropriate bundles. 

The Simplistanians ignore that difficulty, and its a crucial omission. It's hard to deny that democratic representation involves other aspects besides ensuring the ultimate equality of the populace in vote weights. Thus, in a democratic polity in which more than one representative is sent from various subsidiary districts, even if the clever Simplistanian trick of weighting votes in the Assembly by the number of votes received by the representative voting is utilized, multiple representatives from each province will be wanted, so gerrymandering will be a problem whenever geography is the sole determinant of who is in which political district. In other words, if Simplistan were to decide to start sending more than one representative from any of its provinces, if the subsidiary jurisdictions are geographically determined and exactly one winner is to represent all the voters in each of these sub-districts, the precise placement of the district lines will have immense effects on who gets elected. Arguably, this is quite likely to be unfair even if vote weights given each individual are equal. 

Because of this problem, democratic theorists have long pushed either for neutral--rather than partisan-oriented--methods for cutting up subsidiary federal entities, or for replacing single, winner-take-all geographical sub-districts with multi-winner arrangements. 

As I have indicated in a number of blog entries here, I think Approval Voting is best for single-winner elections, and, to their eternal credit, Simplistanians use that method to elect both their Executives and their Assemblypersons. In my view, however, Approval is not a particularly good choice for use in district elections intended to produce multiple winners. Fortunately, there are a bunch of good alternatives. Some scholars prefer ranked choice voting. Others push for a form of party list or other type of Proportional Representation. I think a number of these would be excellent alternatives to our current system, but, FWIW, I  believe that the simplest and best choice is what's called the Single, Non-Transferable Vote ('SNTV'). 

Under SNTV, a procedure that can be used only where there are to be multiple winners, every resident gets exactly one vote, and if there are to be, say, ten representatives elected, all and only the top ten vote-getters win seats. What could be simpler?

           

SNTV has received a ton of criticism over the years, though, and I don't deny that the objections have been on point. The scheme has caused sometimes sever problems in various countries that have used it. The thing is, all those defects have resulted from the fact that the jurisdictions in question have failed to understand what the Simplistanians grasp: for democratic principles to be enforced, the votes of all representatives in any Federal legislature must be weighted by the votes received by such legislators when they were elected. If that principle had been in place, none of the problems resulting from past uses of SNTV would have occurred.###

To sum up, having purely geographical subdivisions with single-winner elections is almost  bound to be undemocratic, whether intentionally or not, and this will be so whether or not (allegedly) weird lines happen to be produced on a "first strike" or retaliatory basis. After all, fighting fire with fire will almost always result in more people getting burned. The only solution is to get rid of geographical, single-winner legislative districts entirely.

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#For an interesting recent discussion of whether federalism can be expected to provide protection against a national autocracy that engages in deliberately discriminatory gerrymandering--or, perhaps, will just make things less democratic at home, see James Gardner, "Can Federalism Protect Subnational Liberal Democracy from Central Authoritarianism?" here. (As usual, I object to the definition of "populism" as a necessarily anti-democratic force in the paper, but I suppose that's pretty much to be expected at this point.)

##Of course, if the provinces themselves were created by the central government THEY might have been the product of an undemocratic line-drawing that gave less populous provinces as much power in governance as densely populated ones.

##See Chapter 8 of my book for a discussion of both the historical shortcomings of SNTV and my claim that the problems it has no doubt engendered would never have occurred if the authority of individual representatives in the legislatures to which they have been elected had been weighted by the votes they received in those elections.

My (perhaps overly strident) review of Michael Lynch's "On Truth in Politics"

 

Michael Patrick Lynch, a thoughtful scholar with an intense devotion to democracy and a clear desire to do all he can for both its preservation and enlargement, has recently written a wide-ranging book on the nature and relationships of truth (along with the desire to find it) and deliberative democracy. My new review of his book, however, focuses mostly on how his understandings of both truth and democracy differ from my own. While I stand by my criticisms, I admit that my piece now seems to me come off as a bit harsh and know-it-ally.

FWIW, I attribute my emphasis on disagreements  of this type with my being something of a "hollaback girl" at heart#--(though I suppose I may credit myself for not being what Lynch calls a "Twitbookian"). I want to stress the fact, however, that no one should think I am hollaingback specifically at Lynch! Maybe it's just at the philosophical world at large? Though if it is, it's definitely not because one of my besties told me that it was talking about me. This, I think, is an unattractive characteristic I share with Samuel Butler, the thinker from whom I stole the name of this blog. 

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#As we know from her song, Gwen Stefani ain't no hollaback girl herself.