Should "Legitimate" but "Unjust" Laws be Implemented and Obeyed?

  

     Gustav Radbruch         Franz Neumann

In my previous blog entry on Laws, Legal Systems, and Government Power, I tried to explain the difference between laws that I take to be authoritative and those that want to call not just authoritative, but also legitimate. The idea was, roughly, that a societal norm within some polity which has the formal features of a law is authoritative if and only if it emerges from procedures which are correct at every turn. I then claimed that while only authoritative laws can be legitimate, legitimacy additionally requires that the government prescribing the procedure for making laws is democratic. What that means is a longer story (see my book). but I don't mean to suggest that only perfectly democratic systems have legitimate laws--after all, there may not ever have been a perfectly democratic system in the history of our planet. I'm not now (and likely never will be) prepared to provide precise minimum requirements for a governmental system to be considered "democratic enough" to produce legitimate laws. But I will repeat what principles I consider to be basic to democracy. There must universal suffrage including those in their mid-teens; every person must be treated equally, with no discrimination allowed on the basis of race, gender, orientation, etc.; the majority should rule, counting each vote equally--but significant minorities should be given a voice in government with the volume of that "voice" mirroring the size of the minority; elections must be "fair" and consequently not buyable; both the referendum and recall should be available to the electorate; and the elected governments must make good faith, transparent efforts to get the electorate what they want based on appropriately aggregated vote tallies.

It seems impossible to deny, however, that governments satisfying those minimal conditions could enact horrific laws that would, therefore, be legitimate according to my theory. Even if the principle of equal treatment prevents any law from calling for discrimination against any particular ethnicity or gender, it could still be the case that a legitimate statute is randomly inhuman or results in brutality to everyone, indiscriminately. Must judges apply such laws? Must citizens obey them? In blog entry linked to above, I promised to do what I could to answer these questions. Here is my attempt.

The two distinguished gentlemen pictured above were German jurists in the Weimar Republic who were particularly interested in whether what the Nazis were soon to put into could reasonably be called laws, and they wrote about what obligations (if any) on judges and regular citizens followed from the passage of such commands. Now, of course, one can reasonably complain both that Hitler was not governing pursuant to majority rule and that very many of his putative laws certainly did involve unfair discrimination (quite essentially, in fact). So it unproblematic to to deny legitimacy to every edict emanating from the so-called "Third Reich."

But let's make this harder by considering some putative law that derives from a regime that is democratically elected and which doesn't discriminate against Jews (or Catholics or Blacks or Gypsies or Gays). This edict could surely remain brutish. Suppose, e.g., that the polity simply won't allow any citizen to emigrate. In fact, imagine that a law is (appropriately) enacted according to which, if anybody is caught trying even to briefly vacation elsewhere, that person may be disemboweled! (If we like, we can  even hypothesize that after its passage, this anti-emigration law was subjected to a fairly conducted referendum and was kept in place by a majority of the populace.)

It might seem then, that, according to a strictly positivist legal theory--even one which contains my democracy criterion--(i) every judge should condemn to a horrible death anyone found guilty of violating this duly enacted provision, (ii) those with the prescribed duty (and scalpels) should carry out its hideous requirements, and (iii) if this polity utilizes juries (or trials at all!), everyone impaneled for such a case should declare guilty any individual he or she believes had the temerity to step over the border.

Does this hypothetical "law" show that legal positivism is a terrible mistake whether or not one adds democracy requirements to the criteria for  legal legitimacy? Can civil disobedience really never just be the right thing to do? Both Radbruch and Neumann meditated on this matter--a particularly crucial one after the fall of Weimar. For Radbruch, the moral was beyond any doubt. Positivism is acceptable only until a law is so horrific that it exceeds any reasonable bounds of decency. He wrote that, "One thing...must be indelibly impressed on the consciousness of the people as well as of jurists: There can be laws that are so unjust and so socially harmful that validity, indeed legal character itself, must be denied them."* Radbruch believed that there might be obligations to carry out and obey even some unjust laws, but that there must be a limit. That line is where "the conflict between statute and justice reaches such an intolerable degree that the statute, as 'flawed law,' must yield to justice."**  And he concluded that "Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law...it lacks completely the very nature of law. For law...cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice."

To the extent that this criterion, eloquent  as it is put here, is conceived to essentially rely on the concept of equality of persons, it cannot not help us much, because we have already locked that criterion in when we insisted that only authentically democratic jurisdictions can enact legitimate laws. For there can be no democracy without equal treatment. We will, then, have to rely on Radbruch's more quantitative approach: it can't be legitimate if it's extremely bad. 

In a valuable paper on Radbruch written about a decade ago,***  Brian Bix warns that we should not confuse support or criticism of legal positivism with any particular position regarding what putative laws ought to be obeyed. He writes, "Legal positivism is a theory about the nature of law, even if it is too often confused with entirely different kinds of claims (e.g., about when and whether laws should be obeyed, or about how statutes and constitutional provisions should be interpreted).  Bix argues that it is crucial to distinguish any general theory concerning connections between law and morality from questions about how judges should decide any particular case and that Radbruch's admonitions must be restricted to the latter questions. According to Bix, one way of seeing this is to consider that legal positivism must be a theory about the nature of law in every conceivable jurisdiction while what judges should or should not do is necessarily a function of the particular system that jurist happens to inhabit. Furthermore, as some jurisdictions clearly contemplate the use by judges of extra-legal norms in making their decisions, a determination that some proposition is not a law in those places would not entail what Radbruch wants--a norm absolutely requiring that any judge ignore the proposition in question because of the gross injustices it would call forth if enforced.

For our purposes here--involving the  appropriateness of civil disobedience among judges, jurors and citizens in particular circumstances--we can focus only on this second interpretation of "Radbruch's Formula," and leave more general questions regarding alleged necessary connections/divergences between law and morality to others. Let us, therefore, continue to call procedurally correct laws ensuing from democracies "legitimate," and just focus only on when we may nevertheless ignore them. Radbruch says, roughly, that we may do so when and only when they are particularly terrible. But that seems to offer very little help. When is a command so immoral that it is really, really terrible?

Neumann also addressed this issue. In a 1952 paper on appropriate disobedience,**** he provides what he takes to be four essential characteristics of the content of any legitimate edict. Like Radbruch, he starts with the legal equality of all rational persons, and he adds that nothing requiring slavery can be legitimate, since slavery requires inequality. Second, he says laws granting or limiting liberty must be general and not apply only to certain specified individuals. Third, retroactive or ex post facto legislation affecting life or liberty are claimed to be improper and so need not be obeyed. Finally, he tells us that the agencies enacting, interpreting, and enforcing laws must all be sufficiently separate.

 

Neumann claims here, without much argument, that his principles two, three, and four are derivable from the first, equality-endorsing axiom. That seems to me an extremely interesting and important claim if true, because any such derivation would seem to prevent a number of versions of illiberality in authentically democratic regimes. But I confess that I cannot myself see how retroactive law-making or parliamentary forms of government--distasteful as they may be to many observers--are inconsistent with providing everyone with equal treatment and protection. Democracy alone does not seem to me to prevent certain types of official cruelty  (or require judicial independence) in instances where the people in that polity are themselves illiberal and cruel. In any case, if all the varieties of illiberality singled out by Neumann are made impossible by authentic democracy, I have not managed to see how or why.

Returning to his main argument, Neumann clearly believed that his four principles are all that we can appropriately agree upon as content-bases for legal legitimacy; but he also worried that they will not seem sufficient to everyone. He writes that his four reeds "may sound very thin and unsatisfactory."  But he thinks that this will be so "only if we forget that man may morally resist any command of his government if his conscience impels him to do so." Why? Because, Neumann insists, "There cannot be made a universally valid statement telling us when man’s conscience may legitimately absolve him from obedience to the laws of the state. Every man has individually to wrestle with this problem. If he decides to resist, he cannot invoke a 'right,' but he will evoke our sympathy. Beyond the four statements on the unconditional right of resistance, each man must make his decision." (Interestingly, he appeals to Hegel's early-19th Century Philosophy of Right for this individualistic stance.)

A "you'll-have-to-figure-this-out-yourself" stance certainly appeals to me in this area, for, as I have written elsewhere, while I believe that moral claims are like factual propositions in either being true or false, and even think that they may be warranted to some extent for a particular individual (perhaps by her emotional responses to various states of affairs), no human being seems to me ever to be in a position to know the truth of any ethical judgment. For it is my view that any such knowledge would require a reasonable and at least partially justified general theory of morality, and I don't think any of those exist.***** Moral claims therefore seem to me akin to astrological predictions, for those are also true or false, and may in some cases be inductively warranted. But, being (let's say) "unhinged," they can also never be known to be the case. As my book shows, I am much more comfortable about our epistemic relations with propositions involving prudential value than with those involving morality.

To conclude, whether or not civil disobedience is appropriate in a particular situation is, without doubt, a strictly moral matter, and as I am a skeptic with respect to moral knowledge, I believe Neumann was right. We will each have to let our own conscience be our guide.

* "Five Minutes of Legal Philosophy" (1945)

** "Statutory Lawlessness and Super-Statutory Law" (1946)

*** "Radbruch's Formula and Conceptual Analysis" (2011)

**** "On the Limits of Justifiable Disobedience" (1952)

***** Most of those that have been offered have been species of hedonism, and no form of moral consequentialism seems to me to have fared very well after being subjected to centuries of criticism. I will admit, however, that I have just been informed of  a new paper suggesting an entirely different sort of theory: Andre, DeBove, et al., "Moral Cognition as a Nash Product Maximizer" (2022). Perhaps something along those contractualist/game theory lines will do better than any version of consequentialism has to date, though I have my doubts.

My Review of Rick Hasen's Cheap Speech

 

Here's an excerpt: 

"Suppose you are on a sea vessel that is rapidly taking on water. You are given an honest description of the cracks in the hull, and you are told, too, what steps the crew and passengers might take toward mending those holes and what the realistic chances are that any of these procedures might do all that could reasonably be expected of them. This crisis response, which I take to be analogous to what Hasen has provided in the area of democracy, would all be well and good, I think, if (i) water were not being taken on in an amount and speed that will surely sink the ship within an hour, and (ii) the crew were not simply passing out a couple dozen ladles."

You can read the whole thing here

What makes for a stable democratic regime?

In my newly published paper on Harry Eckstein's "congruence theory" of democratic stability, I make a plea for political scientists to attempt either to confirm or disconfirm my simplified "majoritarian consonance" version.

My sense is that a comparative politics guru could likely settle this "authority patterns" doctrine once and for all quite quickly. So I hope some of those folks will check it out!

(BTW, if my article seems dry or abstruse, it may help to contemplate while reading it that after escaping Nazi Germany as a child and in spite of publishing a ton of important work and teaching at Princeton as an adult, Eckstein somehow also managed to get married four times.)

Democratic Theory Naturalized is Out in Paperback!

Lexington Books has just notified me that my book, Democratic Theory Naturalized, will available in paperback this Fall at a price of $39.99.

I like this of course, but if you don't want to wait until September, there's already an e-book version available at $45, and Amazon is currently selling the hardback for $53 (unlike R & L, which still lists it for over $100). See this for details.

I'd naturally like to see a price that's in the vicinity $9.99--I mean, in spite of the fact that the book is...you know... absolutely life-altering, priceless stuff! But even a slightly cheaper imprint is obviously a good thing. And, as the book attempts to pound home repeatedly, The more good, the better.

Anyhow, if you've been waiting patiently for a paperback version, you can now order a copy at Rowman & Littlefield or Amazon! Cheers!

Does Democracy Require Meritocratic Elitism?

 

Anne Applebaum's new book is called The Twilight of Democracy, and she is quite distraught about the fading away of...well...something. It's certainly not democracy, though. She's in mourning for the diminution of the nearly worldwide power and prestige once held by her particular cohort: a group consisting mainly of wealthy, center-right, libertarian-leaning intellectuals and corporate big shots. 

If democracy requires such a thing as the majority having its way, there'd be no tears shed by Applebaum if it disappeared from the face of the Earth completely. What she regrets is the (perhaps only temporary) fading away of the credentialism, corporate power, and free markets that long worked together to keep center-right parties in power and could also be depended upon to shower her and her elite batch of friends and colleagues with accolades and riches in whatever Western nation they happened to live or visit. She may be right about the deficiencies of both right- and left-wing populist movements, but to hate racism and authoritarianism does not make one a democrat.

My complete Hornbook review of Applebaum's memoir can be found here.

Laws, Legal Systems, and Government Power

 

These days, I suppose that most people who think about the question of where laws and legal systems come from, have little doubt that they come from people. This view that our statutes, case law, and approved governmental procedures didn't somehow emanate from angelic legislators, but have been patched together here on Earth (like, it's often said, sausages) is called "legal positivism," and it's not only quite intuitive, it's been an extremely popular view--during my lifetime, anyhow. I suppose the "natural law" theory, though it still has its fervent adherents, had its heyday in St. Thomas Aquinas's era.

But if even if the general idea of positivism now reigns supreme, it can't be denied that there are some fairly deep differences among the positions advocated by some of positivism's most widely known champions. In particular, perhaps the movement's two greatest figures--the Victorian Benthamite John Austin and the 20th Century Oxonian H.L.A. Hart--were on the opposite sides of several central issues of legal philosophy. For example, while Austin insisted that every law is essentially an order backed by threats, deriving ultimately from the sovereign, i.e., the most powerful person or group in the land, Hart denied such a reduction. On his view, where there are laws, there must be rules, non-purely-behavioral norms that produce obligations from a specifically "internal point of view." So, while both philosophers were, let's say, Earthians rather than supernaturalists, Austin took the behaviorist (and exclusively "external") view that laws are just commands emanating from habitually-obeyed-and-subject-to-no-higher-power sources, so long as those commands reliably produce the demanded responses among those who are subject to them.

Each of those two eminent theorists required both the procedural imprimatur (to be authoritative, laws must have been created in the appropriate way) and habitual compliance among most citizens. But Hart argued not only that many laws simply aren't commands backed by threats of penalties for scofflaws, but also that, even if they were nothing but orders of that kind--each analogous to "Your money or your life!"  widespread habits of compliance (even among just the right people) would be insufficient to make them lawlike. To be obliged or compelled, Hart argued, isn't the same thing as to carry out an action as a result of an obligation. And Hart argued that laws uniquely carry obligitoriness--or at least they always produce that sense among the officials who are in charge of carrying them out. So, even in those cases where a large segment of the citizenry just obeys because they're worried about trouble they'll be in if they fail to do so, the appropriate internal attitude among those in charge will make a command or power-conferring rule a law.

Like all the most world-altering and influential philosophy books (and for all I know, this is true in every discipline), Hart's book has suffered from the notorious "thousand cuts" delivered by critics. As one philosopher put it to me long ago, when Plato wrote his Republic, Spinoza his Ethics, Kant his first Critique, Rawls his Theory of Justice, Wittgenstein his Tractatus, etc., it was like a huge and majestic elephant taking a step out from a dense jungle into an open, sunlit field....only to be slowly and painfully devoured by a multitude of army ants. Whether or not that analogy is entirely fair, it can't be denied that Hart's classic has suffered that fate to some extent. In particular, numerous criticisms have been levelled at his reliance on  "secondary rules" to do the work of giving putative laws the teeth of authority and legitimacy. Hart claimed that it is these second-order rules, items like To be engrossed in the House, a bill (such as a penalty for burglary) must receive three readings" which provide the authority of first-order instructions regarding how we are supposed to behave. He argued that it is the existence of secondary rules and their placement in the array of injunctions and proper procedures in which they are found that indicate when any lower-order rule is part of a legal system. 

Hart dubbed the key secondary rule (or rules) by which we can tell both that some instruction is a part of a legal system and just which system it belongs to "the Rule [or Rules] of Recognition" and, unsurprisingly, the literature both supporting and criticizing this innovative concept is particularly immense. It is not my intention to rehearse or reject these critiques here. It may well be that attempts to define "law" will always mirror what Steven Sondheim once suggested to Ned Rorem is the case for operas. Sondheim said that if we want to know whether some piece of musical theater is an opera rather than a musical, the best way is to check whether or not its performances take place in opera houses. And it may be the same thing for determining what makes for the sorts of laws that relate to jurisprudence: perhaps what matters is simply the extent to which the items are found to be relevant to judges, police, governors, corrections officers, tax collectors, legislators, and so on.

No doubt this suggestion will be claimed to reflect an objectionably circular approach: knowing which are the appropriate "judges" or "legislators" to consult is no different from knowing which buildings are really opera houses. Is it enough that some building happens to be called "The Royal Opera House"? Couldn't "Pajama Game" be performed there anyhow? The point is that, since the terms "law" and "opera" are both specimens of what are sometimes called "cluster concepts," it may not be possible to do much better than arguing in a circle or producing Wittgensteinian metaphors about family resemblances or the interweaving strands in a rope. There just may not be any precise group of necessary and sufficient conditions to which one can point.

In any event, my general sense--and I believe it's a fairly orthodox position--is that Hart's arguments to the effect that legal systems cannot be reduced to Austin's "orders backed by sanctions" are generally sound. There is evidently more to a law of the land than "Your money or your life!" even when that threat comes from someone with the clear power to act on it.  To point this out is not to say much more than that a tiger compulsively circling her cage is not "following a rule": there seems little doubt that laws are some species of rule (or "norm"). Furthermore, a law declaring the cranberry muffin the official Massachusetts baked good doesn't even require a single person to do a single thing. So it's pretty clear that a behavioristic command theory can't be right. 

I do think, however, that Austin and his greatest British successor were not quite so far apart as Hart believed with respect to what makes an instruction or other rule a law. This point can be gleaned from a couple of the earliest published complaints about The Concept of Law. I refer here to objections made by two of the lead "army ant" soldiers who reviewed that masterpiece in the early 1960s: George Pitcher and Rolf Sartorius. 

It will be recalled that Hart claimed that the combination of primary and secondary rules provided "the key to the science of jurisprudence." This may be so, but both Sartorius and Pitcher were quick to point out that the mere existence of "a union of primary and secondary rules" could never be sufficient to produce a legal system of the sort in which Hart was interested. After all, not only does the Catholic Church have its canon law, complete both with various penalties for non-compliance and with detailed methods of adjudication, but even the NCAA has a penal code! Surely, when we want to set off the system of laws governing a particular country or political subdivision, we generally mean to exclude church or club "laws" and their own systems of governance. We may concede to the cluster theorists that we cannot provide a perfect specification of necessary and sufficient conditions to demarcate those legal systems in which we are particularly interested, but it must at least be possible to give a rough and ready way to separate such systems from the rules of the Church of Scientology and those of the NFL! The problem is that these other codes can't reasonably be denied to also be "unions of primary and secondary rules." In addition, each may have its own penalties for failures to comply, each its own methods for amendment, and each its own adjudication architecture. We can thus see that the presence or absence of some other feature must prevent them from being "real legal systems." But if it isn't those formal characteristics, what does make the difference?

To be fair, Hart was not unaware of the problem pointed out by Pitcher and Sartorius. Indeed, he had anticipated the need for an additional mark of the legal in his book when he appealed to what he called "the minimum content of Natural Law." He recognized that the purely formal characteristic of "being a union of primary and secondary rules" was insufficient and suggested that true laws must also reflect a certain (if vague) sort of humanistic goal to be part of an authentic legal system. It seemed to him obvious that  "there are certain rules of conduct [like, say, not murdering anybody whose sandwich you think you might want] which any social organization must contain if it is to be viable," Hart therefore proposed that bona fide legal systems are limited to those in which the primary rules contain such "minimum content."  

As may already be clear from what has been said above, this move from form to substance won't work either. Indeed it was pointed out in a particularly acute anonymous Note in the Yale Law Journal of 1975 [which I understand--thanks to Nelson Barrette--to have been written by eventual Yale Law School Dean, Anthony Kronman back when he was himself a student at that institution].  The problem is that no particular content, however laudable, can actually cut the ice as a distinguishing feature of law. After all, religious and moral codes famously express the same sort of goals, and many club rules do as well. Presumably, for example, contestants in a sanctioned chess tournament are forbidden from strangling their opponents during a match--or even from throwing captured bishops at them. 

Hart suggested several other candidates for marks of true law, but Kronman's article patiently dismantles all of them....except one. And that characteristic is a matter neither of a rule's form nor its content.  What makes an ostensible law part of an authentic legal system is that it does not require a dispensation from any independent system to implement physical sanctions. For consider: if the NFL wishes to enforce any of the fines on its books, it will be able to do so reliably only if such actions are allowed by the U.S. government. Similarly, if a church wants to impose corporal punishments on those it considers sinful, those actions will have to be allowed by the state. As noted by Kronman (following Max Weber), a modern state is a "community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory." Thus, for any system but that emanating from "the sovereign," an explicit dispensation to apply physical penalties from that sovereign is required. It is that feature alone that makes any putative arrangement of "laws" an authentic legal system. And that is neither a matter of form nor of content.* Indeed, it seems to trump content considerations.

This may seem like an arcane matter of philosophy, but it has great practical importance: it provides us with a necessary condition for any putative law to have actual authority. As I argued both in my 3:16 AM review of the recent Huemer/Layman book on political authority and my own book on democratic theory, to have bona fide authority, a rule must have the right parentage. It must come from that entity that has the most power in any region. 

So much for authority: elements of legal systems must have proper form and causal background. But what about "legitimacy"? Shall we call every authoritative law legitimate? Many will deny this. They will say that to be legitimate, a law must also be morally acceptable, that any putative law allowing for the murdering of anyone whose sandwich one covets--or, to take a more serious case, an imprecation calling for the rounding up and murdering of Jews, Gypsies or Catholics--is always illegitimate, no matter how "authoritative" its history and formal/relational characteristics may make it. I agree with that myself (at least with respect to the rounding up and murdering case). Does this mean that we must bring back content--that to be legitimate laws must reflect the appropriate ethics? Must the widespread appeal of such intuitions spell the end for legal positivism of every stripe? Certainly it has seemed so even to many of the friendliest critics of both Austin and Hart.  

I don't think those critics are correct. I believe there is a way that even those who are skeptical about all claims to know the truth of some proposed ethical maxim can manage to distinguish the subset of authoritative laws that are legitimate from those that are not. In my view, this is the point at which self-governance, i.e., authentic democracy, comes to the rescue. I have argued, both in my book and elsewhere (see, e.g, my interview with Richard Marshall) that there is nothing like a plausible background theory to substantiate our moral intuitions--even if, in some cases they are warranted (by our emotional responses) and happen to be true. They are in this way like astrological claims: such warrant as is provided by our emotional sympathies may be no more reliable than induction from previous astrological forecasts that happen to have been successful. To put this in terms made famous by Susan Haack, our moral intuitions are like "across clues" in a crossword puzzle containing not a single "down clue." It is not that moral propositions are "subjective" or necessarily "true only relative to a particular society or culture." Still less am I claiming with J.L. Mackie that every moral claim is erroneous. What morality seems to me lack is neither objectivity nor truth, but  a background theory with sufficient plausibility to provide anyone with knowledge of a single moral ought proposition. Utilitarians and other consequentialists have tried to provide such theories, and divine command theorists have as well, but nothing has found wide acceptance. Indeed it is my view that no proposal has made much more sense than the astrologer's admonition that "The stars impel, they don't compel." We have evidence only in the form of across answers that fit.

But if we can't actually know any ethical truths, we can take some comfort from the fact that our our epistemic situation may be in much better shape with respect to prudential values--that which makes some thing or event, not necessarily good, but good for us. This is so because it is reasonable to postulate that, at least ex ante, getting what one wants is a (prudentially) good thing. That second helping or fancy TV may not be good for us in the long run, but if we forget about consequences for a moment and just focus on whether it is intrinsically better to get what one has freely chosen than to strike out, it seems sensible (though assuredly not provable) to say that successfully obtaining what we freely choose is better than nothing (i.e., better than utter failure to acquire what we want).** Again, we need make no assumption that any particular choice, whether or not coerced, must produce any long-term benefits for the chooser. For it is of course the case that any one of them might be disastrous not only in the eyes of a third party expert, but even according to the ex post assessment of the chooser herself. 

What does any of this have to do with legal positivism? In brief, it provides a rational basis for the provision of legal legitimacy in self government. This is because what is true of individuals seems to also be true of groups: getting more of the things groups or societies want is an intrinsic ex ante prudential good for groups as well. This means that a shift toward prudential values for our foundations allows political theorists, for perhaps the first time, to explain legitimacy without reference to morality. We can instead say that authoritative laws will have the additional feature of legitimacy if and only if the (monopolistically powerful) states from which they emanate are truly self-governed. Which democracies actually are the "authentic" ones? Roughly, they are the ones in which frequent and fair voting mechanisms reliably result in good faith (and transparent) attempts by sovereigns to get the majority what it wants, while also providing minorities with appropriate voice in government.***

The first and most pressing objection to this theory that is likely to come to mind may bring us right back to the threat of the carting off and slaughter of whatever ethnic, racial or social group the majority happens not to like. How can simply satisfying the desires of the majority prevent such horrific occurrences without the importation of moral values? Aren't there cruel majorities to be found in the world? 

The answer to these questions that are provided by what I have called "distilled populism" is that such values as are needed to prevent those sorts of atrocities can be derived from the concept of "fair voting" alone. That's because there can be no authentic democracy unless every citizen is treated with equal respect. Thus, we don't need to say that unequal treatment is evil. We need only understand that we cannot actually discern what the people want if unfair discrimination is not prohibited. Since real democracy absolutely requires both the equal treatment of votes and equal protection of individuals, even if it arguably cannot without majority disapprobation prevent a system of (legitimate) laws allowing for whimsical murders by sandwich coveters, it must always prohibit a Holocaust. Moreover, I believe that no legitimate legal system can even allow for such anti-democratic atrocities as exclusive reliance on first-past-the-post electoral schemes; indeed, any system including the U.S. Electoral Collage or the U.S. Senate's Filibuster rule cannot enact rules that will pass a legitimacy test requiring authentic democracy. And majoritarian strictures go beyond equal treatment and protection. They will also limit restrictions on free speech, association, and assembly--all, again, without appeal to what may or may not be ethical or "endowed by our creator." They are simply needed to determine what the people really want. What's more, for elections to be fair, "political rights" would seem to have to go farther than the U.S. Constitutional prohibitions, which say only what sorts of rules our government may not enforce.  

I won't try to restate my entire theory of distilled populism here: the full picture may require reading my book. But I do want to close this precis by turning back to Hart's version of positivism--and the youthful Anthony Kronman's note on it. Good as the later piece is, I find that it did overstep a bit. The problem involves its concluding lapse into Austin's behaviorism. One can--indeed one must, to get this right--accept Austin's causal theory without adopting any picture that entails that a successful Skinnerian training of the citizenry to respond appropriately to governmental commands would be a legal system.  Donald Black's quite extreme 1976 book, The Behavior of Law, put it that "Law is governmental social control....a quantitative variable [that] increases and decreases." Well, sort of, but nothing prevents a government from closely controlling the activities of its citizens without having a single genuine law on its books. Kronman claims that Hart and Austin ultimately agree that "A legal system is a set of rules laid down for the guidance of human beings by a determinate person or group of persons having power over them by virtue of their effective monopolization of the physical sanctions within a particular jurisdiction." This rule-containing description is better than Black's reliance on behaviors alone, but if we are interested in legitimacy as well as authority, not every "determinate person or group" (i.e., government or sovereign) can make legitimate laws by promulgating rules and having the power to enforce them without dispensation from any other person or group. Authentic democracy is also needed. 

To conclude, I believe that Austin, Hart and Kronman, while generally on the right track regarding what makes for a legal system, get some important details wrong. If the U.S. has laws--and certainly it would be a gross violation of common usage to deny that!--their existence, as summarized above, is a result of the formal and causal properties necessary for authoritativeness to emerge. But there are problems. For one, as authentic laws may fail to be regularly enforced or even fall into complete desuetude, social habits can't even provide necessary conditions. Furthermore, since even cranberry muffin designations may be correctly enacted by the right entities, full-blown positivism cannot place its faith in "minimum content" or "inclusionary" provisions either. Not only can genuine (i.e., authoritative) laws be completely ignored by both citizens and relevant officials, they can be utterly stupid, pointless, or worse. Thus laws can't depend solely on either societal habits or ethical characteristics for the sort of propriety natural law theorists have sought.

But natural lawyers and other anti-positivists seem to have been correct when they have complained that the conjunction of the required formal properties and appropriate causal background is not sufficient for the provision of legitimacy. Where I differ from those critics is that I believe that it is not morality that is needed anywhere to fill that gap, but democracy, which relies on prudential, not moral values. 

Being no expert either in comparative law or history, I must admit to not being entirely sure whether a single legitimate law has ever been created anywhere. I am fairly confident, however, of the non-existence of any legitimate Federal law in the history of the U.S., simply because of the many defects in what has been so generously called "democracy" since this nation's birth. But if this conclusion does not entail either that we have no legal system in America or that no ostensible Federal laws need be obeyed, we are left with a difficult parting question. Which ones should we follow and which ones  may--or even should be--ignored? Given a prudential-value-based view like mine, are there any authoritative laws that we ought not--or at least need not-- follow? Those are extremely tough nuts to crack, and I shall postpone any attempt to shell them for another day.       

*Thus, an acceptable theory of laws, like the Kripke/Putnam theories of proper names and natural kinds, will be essentially causal.

**For a more detailed look at my attempt to provide a plausible background theory for prudential values (based on an idea put forward by mid-20th Century value theorist, Everett Hall), see my book Democratic Theory Naturalized.

***I have tried to summarize my thoughts on the essential features of authentic self-government here, but there is, again, considerably more detail in my book. 

My Review of Steffen Ganghof's Beyond Presidentialism & Parliamentarism

 

Is there a best sort of governmental arrangement? Is the U.S. system with its President and Congress better than England's Westminster system, with its Parliment and Prime Minister? Or is some other type best--perhaps a structure that's never been used? 

My newest Hornbook review is of Steffen Ganghof's book on this subject. Spoiler: He endorses a system called "semi-parliamentarism." He talks  (quite acutely) about a bunch of other interesting and important stuff too, like the benefits and demerits of different sorts of electoral systems, how best to avoid authoritarianism, etc. I discuss at least some of this in my new review at 3:16 AM, which can be found here. 

My Review of Robert Talisse's Sustaining Democracy: What We Owe the Other Side

 

My latest Hornbook Review over at 3:16 AM is of the above-pictured book. While flawed in certain ways, I think it makes an important contribution to political psychology in our turbulent times. Talisse's diagnosis of our tendencies to polarize and his suggestions for what we can do about it both seem to me right on the money.

Two New Book Reviews

 

The latest two of my "hornbook" democracy reviews now up at 3:16 AM are of the "debate book" by Michael Huemer and Daniel Layman on whether political authority is an illusion here, and of Joshua Spivak's little primer on recall elections here. 

Check 'em out!

Oh, and Happy (tho I'm not expecting much myself) 2022!

The Proof is in the Polling

Back when the atrocities of January 6 were fresh in our minds, I wrote a piece called "Who Cares About Democracy?" in which I opined that the answer is "Almost nobody."

I have lately seen a study coming out of Yale by Matthew Graham and Milan Svolik that provides hard data to support that claim. Here are five conclusions that they draw from their excellent study, "Democracy in America? Partisanship, Polarization and the Robustness of Democracy in the United States" (American Political Science Review, 2020):

1. Americans value democracy, but not much: A candidate who considers adopting an undemocratic position can expect to be punished by losing only about 11.7% of
his overall vote share. When we restrict attention to candidate-choice scenarios with combinations of partisanship and policies that we typically see in real-world elections, this punishment drops to 3.5%.

2. Support for democracy is highly elastic: When the price of voting for a more democratic candidate is that candidate’s greater distance from the voter in terms of her preferred policies, even the most centrist voters are willing to tolerate at most a 10–15% increase in such a distance.

3. Centrists are a pro-democratic force: “Centrist” voters who see small policy differences between candidates punish undemocratic behavior at four times the rate of “extremist” voters who strongly favor one of the candidates.

4. Most voters are partisans first and democrats only second: Only about 13.1% of our respondents are willing to defect from a co-partisan candidate for violating
democratic principles when the price of doing so is voting against their own party. Only independents and partisan “leaners” support more democratic candidates
enough to defeat undemocratic ones regardless of their partisan affiliation.

5. Supporters of both parties employ a partisan “double standard”: Respondents who identify as Republican are more willing to punish undemocratic behavior by Democratic Party than Republican Party candidates and vice versa. These effects are about equal among both Democrat and Republican respondents.

****

The moral is, either exalt democracy or get used to living without much more than a shred of it.

Even a Powerful Majoritarianism Cannot be Tyrannous If It is Truly Democratic

In my humble opinion, there is WAY too much talk about "the tyranny of the majority." What the majority has long been, in the U.S. anyhow, is not tyrannous but feeble. Nevertheless, there is a deep-set fear of violent hordes here, and our Constitution is befouled with a bunch of unnecessary separations of power, a bicameral legislature, an Electoral College, and assorted other enfeebling provisions. The reasons that stuff is in there, of course, and the arguments for retaining all it, center around fear: fear of a "mobocracy," fear of armed brown shirts, fear of sans-culottes, fear of Bolshevism. 

Of course, all of those items are quite sensibly feared. (Think of January 6th for example!) But what is missed by the fearful defenders of our cowering Constitution is that none of those groups, events, or "isms" had very much to do with democracy, even with democracy of the most radical kind. That's what my new paper, "Why Radical Democracy is Inconsistent with 'Mob Rule'" is about. 

It has just come out in the new issue of The Romanian Journal of Society and Politics and is available for free download here.

Abizadeh on Majoritarianism

Majoritarianism seems pretty intuitive: when there is a disagreement, the faction with the most members should win. Why? Because every person’s view should be treated equally. It can’t be denied that there are objections to this very simple intuition. One popular one comes from a position of epistocracy. Epistocrats argue that if some people’s views are “more intelligent,” perhaps resulting from superior evidence, or are considered more likely to be true for any other reason, their votes should be worth more. Another criticism may result from a concern for “persistent minorities.” Here, the problem is that some “sticky group,” say Basque or Canadienne separatists, may be faced with the problem that their advocacy always fails--election after election. They’re in a minority--and not just any sort of minority, but one that almost seems to define them--and may always be so. This seems to some observers to be terribly unfair. These critiques may conclude with the theory that the relevant minority--the “smart people” or the members of the non-dominant culture--ought not to have to obey the majority. After all, the majority is either likely to be wrong (because stupid)* or certain to be oppressive (because dismissive of repeated dissents).

One traditional manner of attempting to maintain some level of majoritarianism in the face of such criticisms is the use of federalism. The supporter of fairly autonomous subdivisions can try to assuage the epistocrat by pointing out that the locals are much more likely to know precisely what is going on than (even the arguably smarter) folks who form their opinions from a considerable distance. And the defenders of separatism may be satisfied if they are given their own political subdivisions where, if not all, at least a considerable portion of their public policy may be developed without outside interference from groups with persistently different outlooks.

The extent to which federalization is anti-democratic is controversial, partly because both the boundary lines of the subdivisions and the areas of policy that are to be free from “outside interference” may be, to a great extent, arbitrary and thus, subject to intense disagreement. Furthermore, it may be doubted whether the locals really do know more about what they’re doing than outside experts, and the creation of, e.g., a French Canadienne region in Ontario would quite likely create a new “minority”: the English-speaking folk within the new district.

These are long-standing, probably intractable issues, and I certainly will not try to make any headway with them here. My interest today is rather in a recently published paper according to which democracy doesn’t require majority rule in the first place, and which concludes that federalism, rather than producing any deficit in democracy, is a democracy enhancer not in spite of its anti-majoritarian aspects, but because of them. For Arash Abizadeh, democratic procedures must be untethered from majoritarianism because it was a mistake to ever closely associate the two concepts in the first place.

Abizadeh begins his discussion by noting what he and others have taken to be the characteristics of majoritarianism that make it uniquely appropriate--even definatory--of democracy. First, there is the (a priori, not “real world”) equiprobability of each voter’s decision being the action that changes the election result. It also makes voter determinations (again a priori) independent of the determinations of all other voters. In addition, majoritarianism provides anonymity. which is the property that ensures that swapping the same number of yea votes or nay votes between any groups of voters cannot change the outcome. Finally, majority rule supplies neutrality, a property that requires that the decision rule itself is perfectly indifferent to what is being voted on.

Abizadeh does not deny that majority rule has any of these essential-to-democracy characteristics, but he suggests that they cannot be sufficient, since other decision rules, like choosing winners through various sorts of lotteries seem to have them too. Certainly, a selection rule having all the properties of neutrality, independence, anonymity and equiprobability may not provide democracy. That’s because democratic decision-making is essentially a method that allows some group to get what they want. That is, no selection rule that is not essentially a voting rule can provide democracy. For in random selection procedures, only one person--or even nobody at all!--may get to indicate her preferences. Abizadeh recognizes this additional constraint on democracy-providing properties when he points to the importance of political agency. He notes that while both dictatorships and lotteries may give each voter an equal amount of agency (or power), majority rule provides the maximum possible a priori voting power to each potential voter.

But in Abizadeh’s view there’s a problem in thinking that equal, maximal (a priori) democratic agency is sufficient for democracy. This can be seen, he thinks, when one considers that representative government itself seems to be inconsistent with the fair distribution of voter power. He writes, “those who defend a majoritarian conception of democracy by appeal to political equality have no leg to stand on once they move from direct to representative democracy.” On his view, with the introduction of representative government (a “two-tier procedure”) majority rule is fatally compromised, because when voters are not involved in the final selection of appointees or policies, “maximizing overall a priori voting power will often sharply clash with equalizing a priori voting power.” That is the sum and substance of what Abizadeh calls his “internal critique,” which, he believes, “reveals the majoritarian conception of democracy to be incoherent.”

This is a very serious charge, so let's look at this argument that majoritarianism is self-contradictory more closely. I believe it’s quite correct that the use of representative government is not inherent to democracy, which may be either direct or representative. There are oft-discussed merits and problems associated with both types, but each can be democratic so long as equally-treated group members are given the opportunity to indicate what they want, and their voices are accurately aggregated and acted upon. Whatever the problems of representative government, however, most of the well-known difficulties associated with representation and delegation are entirely separate from the problems that “two-tier” elections have been shown to create for majority rule. The latter specifically involve such atrocities as the U.S. Electoral College, in which the existence of widely different state populations do clearly de-democratize Presidential elections (just as, of course, the institution of the EC was intended to do). The point is that these specific voting-for-elector problems, which also come up in university appointments, are not solved by federalization: they are actually caused by the devolution of the electorate into separate voting blocs--something that is, of course, required by federalism. That is, as considerable literature on this matter has demonstrated, there is no majority deficit problem with two-tier voting so long as there are no subsidiary units of voters doing the selecting of the ultimate electors. Thus, majority rule is not undone by representation in this context, but by federalism—or at least by the creation of political subdivisions. While  separation of some sub-group into a new country might cure this defect--so long as the new country has no voting subdivisions--so could an absolutely unitary government without the creation of the new polity.

I make here no argument against federalism or other forms of devolution, and I don’t mean to suggest that there are no difficult puzzles produced as soon as a group begins to include appointments or policymaking by delegates who are supposed to be representative of the general electorate in some manner or other. Examples of such problems were recently brought to light by two cases in the U.S. Supreme Court involving so-called “faithless electors”--and have come up in many other contexts involving corruption, dereliction of duty, incompetence, etc. since the days of Plato. But the particular problem of interest here--that of an increase in majority deficit connected with two-tier voting--is actually created by the partitioning of voters into subsidiary units, and (if there were no other relevant considerations, which, of course, there are) could be undone by dissolution of the units and reabsorption of voters into a unitary electorate. In a word, no sub-units, no majority deficits. And there is nothing about the concepts either of majoritarianism or representation from which the devolution of voting segments may be inferred.

So much for Abizadeh’s “internal incoherence” critique. The author moves on from there to what he takes to be the obvious, real-world deficiencies of majoritarianism. These involve, first and foremost, the above-mentioned difficulties associated with persistent minorities. On these matters he is much more convincing...but also much less original. In a (to my mind unnecessarily complicated manner), he argues that certain persistent minorities--those which are likely to have significantly less economic power than the dominant majority--have been dealt hands, indeed hands after hands after hands, that seem on their face to be coming from stacked decks. Abizadeh points out that the political views of the members of such minorities should be expected to be closely correlated: this generally results in a regular struggle by group members to get a single one of their programs implemented. Abizadeh suggests that the solution to such problems involves a recognition of the power in numbers, i.e., facing up to the fact that democracy is largely a matter of group dynamics in which individual choices ought not to be aggregated in any manner that entirely abstracts votes from their relevant surroundings and their implications for a posteriori voting power. Where there is no such recognition, or it is not appropriately dealt with by federalization, Abizadeh believes that members of these groups may be justified in ignoring majority edicts. He may well be right, but it should be clear that such actions/resistance need not be considered to reflect a greater appreciation for democracy. I believe, on the contrary, that what they would indicate is that members of such sub-groups have concluded that democracy does not offer solutions to many of their intractable troubles.

What I think Abizadeh misses here is that democratic procedures should never have been thought to have made those sorts of promises in the first place. Democracy cannot not prevent indifference to minorities, and is even consistent with certain types of cruelty to them. This can (and, in a sense, should) happen wherever a majority is indifferent or cruel. Abizadeh seems determined to make democracy consistent with his views of fairness and decency—or at least with some sort of equality of a posteriori calculation of voting power. But the goal of democracy is neither fairness nor decency of that kind, but simply self-government. It is neither more nor less than the way in which the people in some group (i.e., the majority) can get what they want. It must indeed prevent certain types of discrimination, provide equal protection to each person, and must even lend helping hands to ensure that each group member is provided with a broad array of enforceable political rights. This understanding of authentic democracy thus has those features that Abizadeh associates with what he calls “thick majoritarianism,” But, no matter how thick, democracy should not be thought to ensure a kind or gentle polity by guaranteeing the a posteriori equality of individual voter agency—even if it could.

Of course, everyone is free to exalt lovely goals other than democracy, just as Abizadeh does in this article. Certainly, there is no disgrace in making generosity or fair distribution of wealth or appreciation for indigenous cultures one’s summum bonum: it may even display great virtue. What no one should do, however, is try to bend the concept of democracy in an attempt to show that we can be good small “d” democrats even when we are actually looking hither and yon for ways to prevent the people from getting what they want.

*I spend a good deal of space on refuting epistocratic notions of democracy in my book.

My Hornbook Review of Mary Anne Franks' Constitutional Critique

 

The new review of mine that has popped up at 3:16 AM is of Mary Anne Franks' ferocious attack on white male supremacy, and its alleged support by not only gun groups like the NRA but free speech advocates like the ACLU. It's a fun-to-read polemic.

Franks is right about the cult and the disgustingness of the current GOP, but I think she misses constitutional flaws that can't be found in the First and Second Amendments. She also puts too much faith in the Declaration of Independence and the Fourteenth Amendment. (That's a bit cultish too, IMO.) 

Take a look! 

The Third Chapter of My Hornbook of Democracy Book Reviews

 

My review of Adam Jentleson's new book on the evils of the U.S. Senate, its leaders, and, in particular, its Filibuster is now up at 3:16 AM. It can be found here

The Second Chapter of My Hornbook of Democracy Book Reviews is on Constitutional Idolatry

 

My review of Brian Christopher Jones' 2020 book on constitutional idolatry https://www.3-16am.co.uk/.../2-brian-christopher-jones... has just been published as the second chapter of my Hornbook of Democracy Book Reviews at 3:16 AM: Chapter 2.