Rock Bottom

Thomas Nagel

  • The Dignity of Legislation by Jeremy Waldron
    Cambridge, 210 pp, £35.00, July 1999, ISBN 0 521 65092 5

This short, assertive and engaging book has a chip on its shoulder, hence the title. In the academic culture of legal theory that Waldron partly inhabits, legislatures come in for a lot of distrust or even contempt, by comparison with courts. Courts are widely thought to arrive at their results by reasoning, whereas legislatures are thought to operate by the crude clash of partisan interests. In the United States there is substantial support for the role of courts in guarding individual rights from the depredations of legislative majorities that would otherwise trample them underfoot: this is the famous institution of judicial review, whereby laws passed by Congress or the state legislatures can be struck down as unconstitutional if they violate certain individual rights – to personal freedom as in the case of abortion, or to equal treatment in the case of racial segregation. Britain, too, may soon acquire some version of this system, in the form of a Bill of Rights.

No one who followed the recent impeachment proceedings can find it easy to associate the US Congress with the concept of dignity. But Waldron has an important argument to make, which applies even more sharply to the ideological pandemonium of the United States than to the relatively civilised conflicts of British politics. He believes that the defining ‘circumstances of politics’ are such as to make the legislature, and not the courts, the appropriate arena for deciding the most fundamental questions that face a society. The reason is that there is no consensus about basic principles of justice in modern societies, and it is better that these conflicts be argued out in a larger, representative body than in a smaller, highly selective one like the Supreme Court. Since that court also operates by voting and often decides cases by a 5 to 4 majority, the issue is not whether majorities should be permitted to decide fundamental disputes of justice and rights, but who it should be a majority of, how the members of the group should be selected, and what kind of debate should lead to the vote. Courts and legislatures are very different in these respects, and many liberty-loving Americans would be profoundly uneasy if the protection of freedom of speech, for example, were entrusted entirely to elected representatives of the popular will like Henry Hyde and Trent Lott. But that doesn’t prove they’re right.

The question concerns the relation between theories of justice and conceptions of institutional design. Waldron faults John Rawls for treating the institutional question only for the case of a ‘well-ordered society’, one whose members are agreed on the fundamental principles of justice and committed to supporting institutions that conform to them. He argues that since there are no well-ordered societies the real problem is how to design institutions that will command the allegiance of people who disagree over fundamental questions of justice – not just over means or interests or purely personal values – but who nevertheless have to live together and arrive at collective decisions that will be ‘resilient to disagreement’, decisions that even the losers can accept with good grace.

What is the best way to ensure this resilience to disagreement: a system of legislative supremacy, or a constitution with substantive protections immune to legislative revision and enforced by judicial review? Neither of these may work, as we can see from the failure of democratic government in various countries with beautifully drafted democratic constitutions. On the other hand, given the right traditions of political culture, either method may produce stability. The question, however, is not just a practical but a normative one: what procedural or substantive guarantees would effectively justify us in accepting and supporting the results of collective decision when it goes against us – when we think the result is not just practically but morally wrong?

That is something that will inevitably happen in politics. A state can certainly survive and function without meeting this condition of legitimacy – historically, most states have not even tried to meet it. But Waldron argues, against the contemporary current, that a system of legislative supremacy can do so, and is better suited for the purpose than a system including substantive antimajoritarian provisions enforced by the courts.

The case for substantive guarantees, exempt from legislative revision, is that there are certain outcomes a minority cannot be expected to accept just because they have lost a vote. Experience gives us good reason to fear our fellow human beings. If I were a secular Turkish citizen, I would be grateful that the secular character of the Turkish state is constitutionally guaranteed – and enforced by the Army. No doubt those who want to make the sharia the law of the land find this procedure completely unacceptable. But there is no way to design a system that will command the actual acceptance of all the conflicting parties. At some level, the institutions by which decisions are taken in controversial cases must reflect a particular conception of justice or fairness or equity that will itself be controversial. There is no way to step back or up to a level so purely procedural that everyone can be expected to accept and support its contingent results, whatever they may be.

Waldron recognises that we cannot separate issues of institutional design entirely from issues of justice, but he does want to keep substantive justice as much as possible within the political arena, for resolution by legislative conflict, rather than embodying it in constitutional provisions that are resistant to change and interpreted by judicial reflection and argument. The problem is to identify the conditions under which this can be done fairly. So there is a hard kernel of justice in the defence of majority rule as a way to handle the bulk of those other, more substantive disagreements about justice that will inevitably divide a modern society. Waldron’s defence appeals to a particular conception of fairness, but though he presents it almost as a formal solution to the problem, it is no less controversial than the substantive positions that it is supposed to enable us to decide among.

His defence draws on some classic writers in political theory, not all of whom were convinced democrats – Aristotle, Hobbes, Locke and Kant – and the book is a contribution to the history of political thought as well as to contemporary debate (a historically oriented companion volume to Waldron’s more purely analytic treatment of the same topic in Law and Disagreement, also published this year). The argument has two parts: a defence of the superior wisdom of larger decision-making bodies over smaller groups or single individuals, and a defence of majority rule as fair and respectful of the equality of the participants.

There is the purely probabilistic point, due to Condorcet, that if each of a group of individuals has a better than even chance of being right about something, a majority vote of that group has a better chance of being right than the average individual has. More specific to politics is the advantage, noted by Aristotle, of starting from the range of existing and conflicting opinions in search of the truth, and trying to arrive at a conclusion that accounts for those disagreements and preserves what is valuable in them, rather than relying on the a priori reasoning of a single mind.

Related to this is the importance of being exposed directly to the points of view of others who will be affected by a policy or law, in order to overcome the natural limitations of imagination and make realities vivid. (Waldron has an interesting aside here about affirmative action: using diversity rather than individual merit as a factor in appointment to a law faculty, for instance, can still be defended as a form of decision based on merit – ‘only now, our starting point is the merit of the department or faculty as a whole’; that is, we are deciding between individual candidates on the basis of which one will enable the faculty as a whole to perform its function better.)

Waldron wants to go beyond the defence of majority rule as a mere mechanism for aggregating preferences or interests – a kind of electoral algorithm for cost-benefit calculation. His image of the dignity of legislation gives to each deliberator the role of trying to arrive at the objectively right answer, and not just to advance the interests of his particular constituents. They must contribute a forceful representation of those interests to the debate, but should seek a solution that gives appropriate weight to all interests, and it is not to be assumed that utilitarian maximising of some aggregate total is the answer that accords with justice.

There is no guarantee that this procedure will produce the right answer, and even when it does, not everyone will be convinced. But that, rather than a trade-off among competing interests, should be the aim of the process and the aim of its participants. Interestingly, Waldron finds in Locke the suggestion that this openness holds true of the interpretation of the Law of Nature, and that the legislature is the right place to develop a collective understanding of what it requires – not just to choose means to the implementation of a law universally available to introspection. He argues that the legislative is for Locke the supreme power because a representative body is needed to decide fundamental issues of justice and right.

The fact that any question can in principle be reopened and that there is unanimity about nothing does not help us, however, to decide what normative assumptions we may rely on in fixing the framework within which collective decisions on disputed questions will be made – perhaps even to the extent of excluding the possibility of certain changes through the framework that we have established. Waldron is presumably prepared to fix in stone some kind of representative democracy based on universal suffrage, even though there are still people who think women shouldn’t be allowed to vote. If he is prepared to enforce a condition of equal citizenship for women, in defining the group whose majority opinion should be decisive, that obviously cannot be explained by the fact that it would be chosen by the majority of that group – why that group rather than another, e.g. men? This is an institutional rock bottom, based on an assumption about justice that is nonetheless controversial – more so in some societies than others. But then, why not also hardwire into the system other strict conditions, like freedom of religion or freedom of speech or the prohibition of racial caste, putting them out of the reach of legislative majorities?

Clearly, majority rule does make sense for many matters that have to be decided collectively, but Waldron’s explanation of its completely general fairness is unconvincing. In a chapter called ‘The Physics of Consent’, he argues that majority rule is the decision method by which persons who regard one another as equals can best express their mutual respect. He develops from passages in Hobbes and Locke the idea that if there is a majority favouring one side of a dispute, the opposing voices on the two sides will cancel each other out up to the total number of the minority, leaving the surplus voices in the majority unopposed – and clearly the group should act when some members favour a course of action and their wishes are unopposed.

These ‘extra’ majority votes are not unopposed, however. They are opposed by the minority, whose opposition has not vanished just because it can be paired with an equal number of votes on the other side. It is sleight-of-hand to assimilate the preferences of the unpaired members of the majority to those of a member or subgroup with a preference on a matter on which everyone else is neutral.

The defence of majority rule has to be more complex than this – starting from the need for collective decision and the impossibility of unanimity, and then assessing the probability of error for different methods of decision and the dangers of unfairness or prejudice in the particular issue to be decided. If we have to decide whom to throw out of an overcrowded lifeboat, it would be better to draw lots. But more important for our purposes, sometimes it may be better – fairer – to exclude from simple majority rule certain matters which, though controversial, have to be settled for a society in a uniform fashion and should be settled in one way rather than another. This depends on a substantive normative judgment, but so does the principle of universal adult suffrage which underlies majority rule. If we think it unreasonable to expect people to support the decision of a majority that deprives them of their freedom of religion or their freedom of speech, we have grounds for making this institutionally impossible, as we have grounds for making it institutionally impossible for a majority to deprive a minority of its vote.

The buck has to stop somewhere, though whether judicial review or a constitutional council or something else is the best way of implementing this kind of countermajoritarian protection is another question. There is no a priori answer to any of these questions of institutional design, and conceivably Waldron is right that more of the contested issues of justice and rights should be in legislative hands than are now put there under the US system. I only think he is too confident of having demonstrated this. In reply to Charles Beitz’s criticism of the purely procedural interpretation of equal respect as implausibly narrow, he says:

It is because we disagree about what counts as a substantively respectful outcome that we need a decision-procedure; in this context, folding substance back into procedure will necessarily privilege one controversial view about what respect entails and accordingly fail to respect the others. Thus in the circumstances of politics, all one can work with is the ‘implausibly narrow understanding’ of equal respect; and I hope I have convinced the reader that majority-decision is the only decision-procedure consistent with equal respect in this necessarily impoverished sense.

There is a whiff of the a priori in those italicised words, ‘can’ and ‘necessarily’. Every institutional design, however purely procedural, privileges one controversial view about justice, fairness or respect over others. That by itself does not tell us how much should be so privileged in the design of the political and legal system, and how much should be left to explicitly political decision within that constitutional framework.

I admit that my doubts about Waldron’s desire to expand the political to embrace as many of our collective disagreements as possible are largely due to pessimism, which is a matter of temperament and contingencies of experience. Waldron is originally from New Zealand, and I can’t help thinking this has something to do with his relative optimism. Perhaps for some societies he is right. This excellent book is a forceful statement of an important position.