Democratic Authority This page intentionally left blank Democratic Authority A PHILOSOPHICAL FRAMEWORK David M. Estlund princeton university press princeton andoxford Copyright © 2008 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, 3 Market Place, Woodstock, Oxfordshire OX20 1SY All Rights Reserved Library of Congress Cataloging-in-Publication Data Estlund, David M. Democratic authority : a philosophical framework / David M. Estlund. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-691-12417-9 (cloth : alk. paper) 1. Democracy. 2. Democracy—Philosophy. 3. Authority. I. Title. JC423E714 2007 321.8—dc22 2007012303 British Library Cataloging-in-Publication Data is available This book has been composed in Palatino Printed on acid-free paper. ∝ press.princeton.edu Printed in the United States of America 12345678910 To my mother, Ann Estlund, and to the memory of my father, Bruce Estlund This page intentionally left blank Contents Preface ix CHAPTER I Democratic Authority 1 CHAPTER II Truth and Despotism 21 CHAPTER III An Acceptability Requirement 40 CHAPTER IV The Limits of Fair Procedure 65 CHAPTER V The Flight from Substance 85 CHAPTER VI Epistemic Proceduralism 98 CHAPTER VII Authority and Normative Consent 117 CHAPTER VIII Original Authority and the Democracy/Jury Analogy 136 CHAPTER IX How Would Democracy Know? 159 CHAPTER X The Real Speech Situation 184 CHAPTER XI Why Not an Epistocracy of the Educated? 206 CHAPTER XII The Irrelevance of the Jury Theorem 223 CHAPTER XIII Rejecting the Democracy/Contractualism Analogy 237 CONTENTS CHAPTER XIV Utopophobia: Concession and Aspiration in Democratic Theory 258 Notes 277 Bibliography 295 Index 303 viii Preface There are different kinds of philosophy books. While some are written over a relatively short time, say a year, this one grows out of papers written over twenty years. Many books, including this one, bear down on a question (or several), scrutinizing existing arguments in detail and proposing improvements. This book, in addition to that, tries to de- velop a relatively elaborate theoretical framework—what I call epistemic proceduralism. There are advantages and disadvantages of both of these features, but in any case, the reader deserves advance notice. The rela- tion between this work and my previous papers is a close one, but not a simple one. Only a few chapters (noted below) are close to original pa- pers, while in most cases the ideas from previous pieces are inter- spersed throughout. In general, where the treatment in the book differs from the papers, it supersedes them. On the other hand, material has often been left out here for the sake of brevity and readability (I have tried to provide references where appropriate), not in order to retract it. Perhaps most important, especially for those who work as specialists in normative democratic theory, this book is not by any means merely a restatement of my earlier views. The approach to democracy developed here goes well beyond what I have said before, for better or for worse. As for the book’s attempt to develop a new theoretical framework, not just a better argument for this or that point, one consequence is that there are places where I offer only tentative or preliminary argumenta- tion. I think this is unavoidable if the shape of the general approach is to be laid out clearly. I hope there is enough argument to lend promise to the overall approach of epistemic proceduralism. If so, there is more work to be done. This disclaimer is separate from a further point, one with which the book begins, concerning the idea of a philosophical framework, one that steers relatively clear of engagement with empiri- cal social science and stops short of prescribing many institutional specifics. I say more about that in chapter 1. Having worked on these questions over a long time, it would be impossible to remember and thank all the people to whom thanks are owed. The acknowledgments would run back to teachers and fellow students in graduate school at Wisconsin; through students and col- leagues at my first job at the University of California, Irvine; and those PREFACE over the years at Brown, not to mention several visiting stints, and col- loquia and conferences that were particularly helpful to me. I do owe many thanks to people in all those settings. I confine myself here to ac- knowledging several people who have been helpful in the later stages, as my views turned into a book. For facilitating the transition from views to a book, first thanks go to Nomy Arpaly, not only for the philo- sophical camaraderie of our weekly lunches, but for sharing some of her book-writing magic. Her books have virtues that mine lacks, but mine now has what she taught me was the primary one: existence. Nomy, Cindy Estlund, and Mariah Zeisberg gave me excellent com- ments on the first chapter, and thereby on the whole project. My gradu- ate seminar at Brown in the fall of 2005 was where things began to take final form, thanks to the extremely high caliber of critical attention my draft received from the students. Among them was Jed Silverstein, whose additional excellent research assistance helped move the book from rough draft to less rough. Thanks also go to three students who helped with the final proof reading: Sean Aas, Derek Bowman, and Joshua Tropp. John Tomasi and Corey Brettschneider, political theorists in political science here at Brown, are my partners in building a new swirl of activity and excitement in political philosophy here. I have benefited constantly from the discussions at our Political Philosophy Workshop, but also from their own comments on my work, and especially their encouragement. One event in particular, a workshop devoted to my manuscript, was John’s generous idea. The commentators at that workshop—Russell Hardin, Philip Pettit, and Christian List—worked very hard on a difficult manuscript and helped me enormously. I had first gotten to know Philip during a Harsanyi Fellowship in 2001–2 that allowed me to spend a year at Australian National University. I am thankful for that support from ANU and the leave time from Brown, and for the frequent discussions there with Philip, Bob Goodin, Geoff Brennan, Gerry Mackie, John Dryzek, and Michael Smith, as well as the stellar students and vagabond scholars in the tea room at that amazing place. Thanks are also due to the National Endowment for the Humanities for two fellowships, one sup- porting a semester of research time in 1998–99, and the other supporting research during the summer of 2002. Thanks to Ian Malcolm for his en- thusiasm and expert guidance at Princeton University Press. For help of a deep but less specific kind, I must thank several people who were never my teachers or colleagues, but who took my ideas seri- ously when I was a young scholar just out of school (or even before). x PREFACE Jerry Cohen, Josh Cohen, and the late John Rawls all paid me more sup- portive attention than I had any reason to expect. I owe much in my own thought to their distinguished work, but their early attention itself was formative. For help of the deepest kind, I want to thank Meg Denton, Corey Es- tlund, Hannah Estlund, and Marshall Estlund for the years of working and playing together during the time when the book was produced, as were countless things of much greater value than this. There is much new here, but there are also passages and ideas drawn from previously published papers. The bibliography lists most of my published articles that bear on democracy, but several chapters bear an especially close relation to the previously published versions, and I am grateful for permission to draw on them. Chapter 5 is based closely on “Democracy,” in Oxford Handbook of Contemporary Philosophy, ed. Frank Jackson and Michael Smith, (Oxford University Press, 2005), 208–30. Used by permission of Oxford Univer- sity Press. Chapter 7 is based on “Political Authority and the Tyranny of Non- consent,” Philosophical Issues 15 (2005): 351–67. Used by permission of Blackwell Publishing. Chapter 11 is based on “Why Not Epistocracy?” in Desire, Identity and Existence: Essays in Honor of T. M. Penner, ed. Naomi Reshotko (Acade- mic Printing and Publishing, 2003), 53–69. Used by permission of Aca- demic Printing and Publishing. Chapter 13 is based on “The Democracy/Contractualism Analogy,” Philosophy and Public Affairs 31 (2003): 387–412. Used by permission of Blackwell Publishing. xi This page intentionally left blank Democratic Authority This page intentionally left blank CHAPTER I Democratic Authority One of the two, as the wiser or better man, has a claim to superior weight: the difficulty is in ascertaining which of the two it is. John Stuart Mill, Considerations on Representative Government Democracy can seem to empower the masses without regard for the quality of the political decisions that will result. Concern for the quality of decisions can seem to lead in an antidemocratic direction, toward identifying and empowering those who know best. Partly for these rea- sons, philosophical treatments of democracy’s value have often tried to explain why politics should be democratic even though democracy has no particular tendency to produce good decisions. I believe these ac- counts are weak, and I want to put democratic convictions on more se- cure footing. My goal is to show how a concern for the quality of politi- cal decisions, properly constrained by other principles, supports democratic political arrangements. Rousseau pleads, “All my ideas are consistent, but I cannot expound them all at once.”1 In this synoptic essay I try to present, all at once, the broad shape and main points of a more elaborate book-length argument.