Jack Lively and William Nelson on the Natures of Democracy and Popular Sovereignty

 

 

I was reading philosophy back in the late 70s and early 80s when the books discussed here came out, but I was not reading anything on democracy or political philosophy until a constituent of a legislator I was working for recommended Henry George's Progress and Poverty. (This elderly gentleman wrote my boss a compelling letter about the unparalleled virtues of the land value tax and included the information that "I am a Georgeist, my father was a Georgeist, and my grandfather was an abolitionist." Naturally, the legislator in question never looked at this letter but simply passed it along to me for a response. I  didn't just write this constituent back though: I ended up hosting weekly single-tax meetings for several years at my second-floor apartment in Allston. The discussions there bore some resemblance to those of The People's Front of Judea in Monty Python's Life of Brian. But my attendees had a considerably higher average age, and I'm not sure now how all of them got up the stairs. 

Although I no longer spend much time on books or magazines with names like "Land and Liberty" or "The Power of Soil, Our Common Birthright," as readers here have surely guessed, I now read a lot more political philosophy. But back in the 1970s (to paraphrase an Incredible String Band song), my philosophy readings were still focused mostly on metaphysics, epistemology, and Spinoza (on whom I wrote my dissertation), as I continued to frantically cast about for somebody (though maybe not Spinoza or McTaggart) to prove that people are immortal. 

I have cleared my throat at such excessive length before beginning this piece as a way of excusing myself for never having seen a word from two fairly popular (and efficiently titled) books on democratic theory from those days: Jack Lively's  1975 Democracy and William Nelson's Justifying Democracy. While I have by now gotten through quite a bit of the literature discussed in those two books -- writings by people like Bryce, Schumpeter, Arendt, Dahl, Arrow, Eckstein, and Tullock/Buchanan -- I figured it was past time to have a look at Lively and Nelson themselves, if only for remedial purposes. Having now had this look, I have a sense where both philosophers seem to me to have gone wrong: their opening definitions led them astray and really could not have failed to do so.

Even if authentic versions of democracy must depend on the equality of votes and voters, democracy should not be deemed to be identical with equality, political or otherwise. That is Lively's initial error. But neither should the essence of democracy be taken to involve a mechanism that will produce morally correct decisions. That is Nelson's early misstep. These mistakes are fatal because, once missed, the crucial connection between democracy and popular sovereignty cannot be subsequently forced in. If you try to separate the concept of democracy from the idea of residents getting what they want, there's a good chance that you will end up with something that is entirely undemocratic.

To begin with Lively, his remarks on faulty attempts to cure perceived shortcomings in majority rule for persistent and apparently powerless minorities are quite sharp. I speak here of his critiques of 'solutions' like Dahl's "Minorities Rule" and the idea that numerical vote deficits might be offset by somehow harnessing the greater desire intensities of minority voters. Lively hammers home how comfortable the status quo is likely to be for well-to-do elites and why that makes veto power sufficient for most of their needs. He specifies the various ways that small, wealthy groups have been able to handle their own lack of numbers and how difficult it can be to dislodge any group that can afford to produce vetoes at will, noting that they may need little more than that ability to remain ascendant. Thus, for the Elon Musks of the world, "majority tyranny" has always been something of a paper tiger. Even if it were true that poor, greedy, and ruthless voters always comprise the majority, there are always plentiful means for the wealthy to keep them at bay. 

These empirical diagnoses and the discussions of the snake-oil cures are important and correct. But the conceptual error lingers. The problem for Lively's overall analysis runs deeper than the observation that if equality is always illusory, there may be no democracies anywhere -- an uncomfortable conclusion the analyst might soften by treating democracy itself as a matter of degree. The more fundamental difficulty is that political equality cannot distinguish democracy from forms of rule that have nothing to do with it. Consider Hobbes' state of nature. It gives everybody roughly the same political power -- i.e., none. Nevertheless, that jungle is not only not a perfect democracy; it is as far from a democratic polity as it's possible to be. Similarly, if we consider a monarchy in which the king has just been beheaded, making it currently unclear how or where public policies will be enacted or enforced, we again may have something like political equality, but nothing like democracy. 

The same failure of intentionality appears in government by sortition, where random individuals are chosen to make and execute policies for everyone. In any such jurisdiction, if the citizenry gets what it wants, it will be largely accidental.# When Lively makes such assertions as "there are some circumstances in which limits on majority decision may be set on democratic grounds" or "the principle of political equality can be violated by majority decision" it should be clear that, by making equality both the main goal of political theory and the basic criterion for democracy (rather than just one necessary condition for its existence), he has doomed his project from the start. 

To be democratic, the procedure for determining public policy must be focused on getting the majority what it wants. That is consistent with some democracies being quite unpleasant, so there may be good reasons for limiting democracy's scope. But as I understand the term -- and I think my concept is quite orthodox --nothing can be an authentic democracy that has any first principle other than The people get to choose their policies and representatives, and  majorities get to stand in for the people as a whole.

Now, I am not suggesting that the fact of political inequality, the varying amount of influence that different individuals can have on election results, is unimportant. Far from it. The fact that someone like Musk has so much more power to affect an election than any randomly chosen million other people is a colossal problem for democracy. The point is that it is something that cannot be fixed in the ways commonly suggested because not all types of political effectiveness are equivalent: equal vote weights are essential to democracies, but equal access to money or charisma are not. Thus, we cannot address political inequalities by attempts to build up or make up deficiencies of these inessential characteristics in voter cohorts without creating nonsense.🗡 The appropriate way to address these inequalities is instead via restrictions, things like campaign finance rules  that move from the top down, rather than the bottom up. Unfortunately, even if successful attempts were still being made to restrict activities like "dark money contributions," they would likely do little for poor, persistent minorities. I don't deny that this is a serious "problem for democracy." I simply insist that it is no solution to claim that where political inequalities exist, we don't have (or have less) democracy. On my view, it is better to simply admit (with Churchill) that democracy is problematic: perfect democracy, in spite of its matchless intrinsic value to a citizenry, has little promise for producing a perfect (in the sense of happy or good) polity. Fortunately, that is not its role.

It would seem that Lively should have noticed the utopian aspects of his theory when he criticized Sartori in this way: "It is too easy to say that, given the absence of legal bars to political involvement, equality of opportunity has been established." Of course it hasn't — but nobody, including Sartori, ever suggested that the conditions necessary for democracy would also guarantee equality of opportunity. As Lively himself notes, political involvement is a function not just of the absence of legal obstacles but of such things as "attitudes," "resources," "sense of political efficacy," "apprehension of the extent to which [one] can alter [government decisions]," "access to information," "competence in assessing [one's access to information]," "willingness to pay [in time and money]," and "experience of social organization." How in the world could democracy be thought to require the equality of all those sorts of things? 

Lively puts conceptions of popular governance on a continuum with the highest level involving all the people doing all the deciding, legislating, enforcing, etc., down to levels six and seven. At six, rulers should not even be chosen by the people, but by those previously elected by the populace. And at the lowest level of popular governance, rulers need only "act in the interests of the ruled." Both ends of this continuum -- The Terror on one end, and complete paternalism on the other -- seem inapt to Lively (as I think they should to everyone). Even if the first level were workable in some Soviet fashion (which it isn't), the result would be largely anarchic. And, regarding level seven, if these alleged interests are not determined democratically, the people actually have no role in their governance at all, while if there is to be electoral involvement, we will need to climb back up to a higher level. 

I myself am content with level three, where rulers are accountable to the ruled and can be removed by them. For his own part, Lively is ambiguous about what level we should aim for, but one gets the sense that he could also live with level four, where the rulers need only be removable by representatives of the ruled. In my view, impeachment jurisdictions like the U.S. show how generally pointless that sort of removal "right" is.ψ 

Unsurprisingly, Lively is less interested in answering the question of the appropriate level of "people involvement" in government than in searching for ways to improve "political equality," for that, he believes, is the summum bonum of democratic theory.

Jack, with his wife, the novelist Penelope Lively

The first few pages of Justifying Democracy paint a convincing picture of Nelson carefully avoiding the same sorts of conceptual pitfalls that swallowed Lively. He assures his readers that he is well aware of a tendency of theorists to "confuse questions of definition and questions of justification or evaluation." He is focused, he says, on "finding a conception of democracy that is sufficiently close to our pretheoretical conception," so some of us may not notice (or let pass) that he adds "...and that can be justified by cogent moral argument." Nelson claims that he doesn't assume "that democracy is a good form of government." But, of course, if any decent conception of democracy must be justifiable by cogent moral argument, it's not clear how it could be anything but righteous. This makes his insistence that he does not presume that whatever is a democracy must be "a good form of government" somewhat difficult to square with his previous remarks, but perhaps he is just speculating that there may be other forms that can be justified by superior moral arguments, or that democracies, for all their moral virtues, are not workable for other, more mundane reasons. 

When Nelson asserts that he takes democracies to be systems "for making governmental decisions," and so requiring definition in terms of procedures rather than substantive policies, one gets a sense that he has regained his balance, especially after he adds that he intends to focus on "how the various institutions affecting governmental decision-making should be structured" rather than on what the decisions turn out to be. We will find, however, that our earlier wariness was justified. While his conception does distinguish processes from results, it's clear that it is only a sufficiently high probability of producing morally acceptable results that he thinks can qualify a system as democratic.* On his view, every democratic theorist has an obligation to demonstrate why the method he or she advocates -- whether it is a traditional or revisionist concept -- is morally good. And Nelson is completely comfortable in both confessing that he does not have "a complete moral theory of [his] own to offer" and nevertheless foretelling that the conclusions in his book will, because they must, consist solely of judgments in moral theory. 

Given Nelson's focus, it is unsurprising that there is considerable discussion of utilitarianism in the  book, including an interesting discussion of Sartori's version of act utilitarianism. (Partly because of the really astonishing popularity of Peter Singer's 1975 book on animal rights, utilitarianism was much more popular when Nelson was writing than it is today.) There are also valuable discussions here on Mill, Singer, Foot, Pateman, and Rawls. I will not discuss that material here because it is outside the scope of topics suitable for this blog piece, but I want to stress that some of it seems to me quite good. There is also a chapter on governmental authority, which I find generally congenial, but perhaps I would have liked even more before reading the recent Kenneth Himma book on that subject that I reviewed here. I mention these virtues because I don't want readers to infer from my criticisms above on definition or below on popular sovereignty that I think this is a worthless book. Indeed, even the material in those two sections will provide readers with useful information and  sometimes intriguing arguments. When the book originally came out, it was praised for its critiques and panned for its positive theory; I generally concur with that assessment, but would add that there is something that can be learned from every section in it...but also warn that some of the  more polemical material isn't worth the trouble of working through. The discussion of Arrow's Impossibility Theorem, for example, takes up quite a bit of space without really going anywhere. 

Nelson's first pass on attempts to justify majority rule involves a discussion of the virtues of neutrality (proposals are treated identically) and anonymity (voters are treated identically) as set forth by Arrow and Sen. He doesn't mention that majority procedures need not possess these characteristics, though it is certainly a point in their favor that they can. However, Nelson suggests that a coin-flip mechanism could share those two virtues and recognizes that this may be why a number of theorists have pointed out the importance to authentic democracy of popular sovereignty -- constituent power. But before devoting a chapter to the latter concept, he makes some of the same criticisms of majoritarianism that we have seen in Lively (and many others before and after him): giving majorities the reins may have unpleasant results for minorities. And there is no doubt that those consequences should be acknowledged by any good theory of democracy.

Before turning specifically to popular sovereignty, Nelson gives us a brief, convincing chapter on whether broad participation in policymaking might alone make for an acceptable criterion for democracy. Besides a good discussion of Schumpeter's views on this subject (according to which, basically, if something can pass as democracy among the not-too-discerning, we ought to call it that), Nelson lands these haymakers: "Participatory democracy...is a system that (morally speaking) traps people. The more they participate in the political process...the more deeply they become committed to the system even if their views do not prevail." And "If it were true that participation constituted consent, all that would follow is that those who participate have an obligation to obey the laws or acquiesce in the policies of their government. A government that...achieved widespread participation would then be a legitimate government, but only in the sense that [such participants are] obligated to go along with their government." Such considerations would seem to demonstrate that it's not actually participation, but congruence with majority choice that really makes a jurisdiction democratic. This should lead us to expect that Nelson's remarks on whether democracy should be understood as popular sovereignty, a way in which people can get what they want, should be dispositive. 

Frankly, that chapter is a bit disappointing. After the meandering material on Arrow -- that never suggests the possibility of non-ordinal preference measures -- mentioned above, Nelson follows Benn and Peters in making the (I think correct) point that, to the extent that there is a will of the people, "it cannot be determined independently of the particular [voting] procedure employed." Of course, not every procedure chosen will be democratic. In my own view, for example, it must weigh each vote equally, and it must be majoritarian. Nelson sometimes says that he believes in majority rule, but any such preference is, for him, always outweighed by the requirement that the electoral results will benefit the people. It must be desirable for the resulting policies to reflect the will of the populace, however it is assessed. His failure to make the very fact of self-rule intrinsically valuable — or even to consider the possibility that such arrangements have fundamental and irreplaceable import — makes the section largely point-missing. There are two appendices to this chapter, but, sadly, they also provide very limited value. 

Indeed, this is the key shortcoming of both books. If one fails to realize that citizens-getting-what-they want is essential to democracy, one's book on democratic theory can only be so good. We may take the point of "people power" to be increased freedom a la Kelsen. Or we may just consider it axiomatic along with Hall (and, I think, Wall). But once one goes down the road of trying to make democracy, in its essence, a system that will make a pleasant polity or choose "correct" laws, or make a land just, righteous and kind, we are no longer engaging in democratic theorizing. Both of our authors are utopian, and, understandable as that impulse may be, I think it would have been more useful for them to turn their undeniable skills to handling the problems that authentic democracies can make for polities, rather than insisting that, where we find such problems, there can be no democracy.

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# Sortitionism is an ancient scheme for which there is substantial modern enthusiasm. I have set forth some of my concerns here. On this matter, I agree with Abizadeh. See this. 

🗡I discuss this matter at considerable length here (even including in that piece a video clip from an Amy Schumer sitcom)! Wall (2007), cited therein, is an important paper on this subject.. 

ψLevel two, because it requires that every person in the jurisdiction be "personally involved in deciding general laws and policies" without specifying which laws and policies are the general ones, seems to me quite likely to collapse into level one, which will probably limit its attractiveness to Leninists and Cordeliers.

* I actually found it quite jarring to read, shortly thereafter, that Nelson believes it is incorrect to attempt to justify democratic procedures by claims regarding such things as citizen participation or equality of influence, because, since the laws produced by these procedures may be objectively "good or bad, just or unjust....we must focus on the kind of laws or policies the procedure will yield." It is hard to imagine a remark that more clearly contradicts what he had just insisted was the plan of this book.