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    Democracy-as-Fairness: Justice, Equal Chances and Lotteries
    
    Ben Saunders Jesus College
    
    Thesis submitted for the degree of D.Phil in Politics in the Department of Politics and International Relations at the University of Oxford.
    
    March 2008 (Hilary Term)
    
    Word Count: 94,210 (excluding bibliography) (82,186 excluding footnotes)
    
    2 Abstract Democracy-as-Fairness: Justice, Equal Chances and Lotteries Ben Saunders, Jesus College, Oxford D.Phil in Politics. March 2008 This thesis challenges the close association of democracy and majority-rule. I argue that democracy requires political equality, but there is no reason to suppose that this is only realized by majority-rule. I suggest that we can think about democratic procedures contractually, and reject the claims that majority-rule will be agreed to on the grounds that it will produce better or more equal outcomes or that it will necessarily be fair to all involved. Fairness is often connected to each person having an equal chance of getting their way, but majority-rule may de facto exclude a permanent minority, who would then have no reason to accept the procedure as treating them equally. The argument is not merely negative, however. My positive suggestion is that, if we want everyone to have an equal chance of casting a decisive vote, then we can realize this goal by entering all votes into a lottery, so one is randomly chosen to determine the outcome. The thesis goes on to describe how this ‘lottery-voting’ would work in practice, offering examples of small-scale direct democracy in which it might be applicable, reflections on how it might fit into a larger democratic framework (for instance, the relation between this voting procedure and deliberation and constitutionalism) and assesses it in light of the criteria of social choice (such as decisiveness, anonymity and neutrality) and rationality. The aim is not to defend lottery-voting as the best decision-procedure for all circumstances, but to illustrate that it is a democratic possibility and therefore to stimulate new debates within democratic theory, for instance on the justification of majority-rule.
    
    3 Table of Contents Abstract ................................................................................................................. 2 Table of Contents.................................................................................................. 3 Introduction................................................................................................................... 6 (0.1) The Importance of Political Equality ........................................................... 6 (0.2) Equal Chances .............................................................................................. 7 (0.3) What Lottery-Voting Is ................................................................................ 8 (0.4) Literature Review....................................................................................... 11 (0.5) Political Morality........................................................................................ 15 (0.6) The Logic of Democracy............................................................................ 20 (0.7) The Concept of Constituency..................................................................... 25 (0.8) Plan of the Thesis ....................................................................................... 29 1 Democracy as Freedom and Equality ...................................................................... 37 (1.1) Rule of the People ...................................................................................... 37 (1.2) The Possibility of Self-Government........................................................... 39 (1.3) Equal Relations and Respect ...................................................................... 41 (1.4) The Alleged Obviousness or Necessity of Majority-Rule ......................... 44 (1.5) Contract and Consent ................................................................................. 48 (1.6) Contracting to Majority-Rule ..................................................................... 50 (1.7) Proportionality............................................................................................ 52 (1.8) False Dichotomies and Neglected Options ................................................ 55 (1.9) Conclusion.................................................................................................. 60 2 Maximizing Arguments for Majority Rule .............................................................. 62 (2.1) Introduction ................................................................................................ 62 (2.2) Procedural Justice....................................................................................... 64 (2.3) Perfect Procedural Conceptions of Democracy ......................................... 67 (2.4) Problems with Utilitarian Outcomes .......................................................... 69 (2.5) Can Intensities be Accommodated? ........................................................... 70 (2.6) Imperfect Procedural Conceptions of Democracy ..................................... 87 (2.7) Minor Problems with the Condorcetian Paradigm..................................... 89 (2.8) Indeterminacy............................................................................................. 91 (2.9) Conclusion.................................................................................................. 95 3 Using Lotteries to Adjudicate between People........................................................ 97 (3.1) Introduction ................................................................................................ 97 (3.2) The Uses and Abuses of Lotteries.............................................................. 98 (3.3) Justifications of Lotteries ......................................................................... 101 (3.4) The Numbers Debate................................................................................ 105 (3.5) Taurek’s Argument for Equal Chances.................................................... 107 (3.6) Scanlon’s Objection to Equal Chances .................................................... 109 (3.7) Scanlon’s Argument for Saving the Greater Number .............................. 111 (3.8) The Weighted Lottery: Pooling Chances ................................................. 113 (3.9) Re-constructing the Fairness of a Weighted-Lottery ............................... 115 (3.10) Counting Individuals, Again .................................................................. 119 (3.11) Scanlon’s Argument Against Weighted Lotteries.................................. 121 (3.12) Prior Randomization versus Fixed Majorities........................................ 122 (3.13) Proportional Chances versus Proportional Outcomes............................ 124 (3.14) Conclusion: Towards Political Application ........................................... 127 4 Lottery-Voting Described ...................................................................................... 130 (4.1) Introduction .............................................................................................. 130
    
    4 (4.2) The History of Lot.................................................................................... 130 (4.3) Modern Proposals..................................................................................... 133 (4.4) From Representation to Direct Decisions ................................................ 137 (4.5) Lottery-Voting Described ........................................................................ 138 (4.6) The Book Buying Example ...................................................................... 141 (4.7) The Reading Group Example................................................................... 147 (4.8) Vote Counting .......................................................................................... 152 (4.9) When do Losers’ Votes Count? ............................................................... 154 (4.10) Contingent Outcomes............................................................................. 158 (4.11) Predictability .......................................................................................... 161 (4.12) Randomness in Democracy.................................................................... 162 (4.13) Conclusion.............................................................................................. 165 5 Practicalities........................................................................................................... 166 (5.1) Introduction .............................................................................................. 166 (5.2) Lottery-Voting as a Part of the Decision Process .................................... 167 (5.3) Minority Motions ..................................................................................... 168 (5.4) Compromise and Collusion...................................................................... 172 (5.5) Liberalism and Constitutionalism ............................................................ 174 (5.6) Incentives for Deliberation....................................................................... 178 (5.7) The Nature of Deliberation and Limits of Reason-Giving....................... 182 (5.8) Openness and Compliance ....................................................................... 183 (5.9) Scrutiny .................................................................................................... 187 (5.10) No Repeats ............................................................................................. 188 (5.11) Dividing Decisions................................................................................. 190 (5.12) Conclusion.............................................................................................. 194 6 Minimal Conditions of Social Choice.................................................................... 196 (6.1 Introduction) .............................................................................................. 196 (6.2) May’s Conditions ..................................................................................... 197 (6.3) Decisiveness ............................................................................................. 198 (6.4) Anonymity................................................................................................ 199 (6.5) Neutrality.................................................................................................. 201 (6.6) Positive Responsiveness........................................................................... 203 (6.7) Arrow’s Conditions .................................................................................. 206 (6.8) Universal Domain .................................................................................... 208 (6.9) Pareto........................................................................................................ 212 (6.10) Independence of Irrelevant Alternatives ................................................ 217 (6.11) Non-Dictatorship.................................................................................... 227 (6.12) Arrovian Conditions Concluded............................................................. 232 (6.13) Non-Manipulability................................................................................ 234 (6.14) Weighted-Voting.................................................................................... 238 (6.15) Conclusion.............................................................................................. 241 7 Rationality.............................................................................................................. 243 (7.1) Introduction .............................................................................................. 243 (7.2) The Nature of Rationality......................................................................... 244 (7.3) Maximization ........................................................................................... 249 (7.4) Consistency between Decisions ............................................................... 251 (7.5) Consistency over Single Decisions .......................................................... 254 (7.6) Individual Rationality............................................................................... 258 (7.7) Collective Rationality............................................................................... 262 (7.8) Rational Use of Decision-Mechanisms .................................................... 265
    
    5 (7.9) Path Dependence ...................................................................................... 269 (7.10) Conclusion.............................................................................................. 271 Conclusion ................................................................................................................ 273 (8.1) Summary of the Argument....................................................................... 273 (8.2) The Importance of Thought Experiments ................................................ 274 (8.3) Practical Possibilities................................................................................ 277 (8.4) A Utopian Example.................................................................................. 280 (8.5) The Place of Democracy .......................................................................... 283 Bibliography ............................................................................................................. 287 (B.1) Books and Articles................................................................................... 287 (B.2) Other Acknowledgements ....................................................................... 306
    
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    Introduction “If it is not controversial, it is not about democracy”1 “[I]t has been said that democracy is the worst form of Government, except all those other forms that have been tried from time to time”2 (0.1) The Importance of Political Equality It is often assumed that democracy means, or at least requires, some form of political equality. For instance: “[E]quality is the fundamental value underlying democracy”3 “One characteristic that most persons regard as essential to democracy is political equality. A familiar way of describing this trait is ‘one man, one vote’… the right of each citizen to count as one in the decisionmaking process of the community”4 “[T]he democrat wants us all to contribute equally to delivering an answer”5 I will not here investigate these claims. I will simply take it for granted that we do indeed want all votes6 to count equally, as is often claimed: “The principle of political equality… is that every man counts for one vote, and that one man’s vote is the equivalent of the next man’s”7 “[Elections] constitute an important arena for ensuring political equality between citizens, both in access to public office and in the value of their votes… [E]ach vote should have the same weight or value, regardless of where people happen to live or which party they vote for”8
    
    Woodruff (2005) p.ix [not emphasized in original]. Churchill, speech of 11/11/47, in Churchill (1974) p.7566 [not emphasized in original]. 3 Christiano (1996) p.17. 4 Ranney and Kendall (1956) p.16. 5 Swift (2006 [2001]) p.183. 6 I discuss the possibility of weighted voting in chapter 2.5 and 6.14. Even if we accept that some people should have more weight than others, however, we would want their votes to be equal, so giving someone double weight can be achieved by giving them two votes. 7 Sartori (1965) p.335. 8 Beetham and Boyle (1995) pp.31, and 49.
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    1
    
    7 “The statutory right to an equally powerful vote reflects the widely shared view that democratic institutions should provide an equal opportunity to influence political decisions”9 “[F]airness requires that each person receive an equal share or an equal chance”10 If it turns out that democracy does not require that votes be equal, as is sometimes suggested11, then my thesis is not about all democratic systems, but only those that do count all votes equally.
    
    (0.2) Equal Chances Assuming we want votes to count equally in some form, it remains to be seen what this means. Numerous interpretations could be put forward, but I focus on one – namely the often-stated ideal that each vote should have an equal chance of determining the outcome of the election. “Majority rule is a genuinely egalitarian rule because it gives each person the same chance as every other to affect the outcome”12 “[A] representation system satisfies procedural equality if it accords to every voter an equal a priori probability of influencing any particular legislative choice”13 “[I]f we are concerned about political equality, it seems reasonable to require not only that each person’s vote count the same as that of each other person, but also that each person, regarded as someone with particular proposals to advance, have an equal chance to have his proposals adopted”14
    
    9
    
    Guinier (1994) p.72. Dahl (1985) p.58. 11 For example, Vernon (2001) p.44 and Rehfeld (2006) pp.23 and 195 argue that because the chance of a vote deciding the outcome of an election is so small, we need not worry that the chances are unequal. This seems to contradict the idea that equality is often supposed to matter more the less we have, but this is because the chance is practically nothing – it is like distributing not slices but crumbs of cake, in which case we may not care whether one person has three crumbs and another two (I owe this example to Jerry Cohen). 12 Christiano (1996) p.55. 13 Beitz (1983) p.72. 14 Nelson (1980) p.19.
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    8 “The purpose is not to guarantee “equal legislative outcomes”; [but] equal opportunity to influence legislative outcomes”15 If all votes should have an equal chance of determining the outcome, an easy way to achieve this is to put them all into a metaphorical ‘hat’ or tombola and randomly select one to decide the outcome. This is roughly what lottery-voting amounts to, although a fuller description is needed.
    
    (0.3) What Lottery-Voting Is The idea of randomly-selecting a single vote to determine the outcome of an election is not a new one. It is sometimes appealed to by those working in social choice. It has also been put forward as a possibility – if only to be rejected – by a number of political theorists, as discussed in the next section. The only serious advocate I know of is Akhil Amar, who proposed what he called ‘lottery voting’ in the Yale Law Journal over twenty years ago16. Although the name comes from this article, lottery-voting is proposed here for direct decision-making, rather than electing representatives. The added complexity of large-scale representative democracy is bracketed by focusing on small bodies, such as clubs or associations, making their own decisions (see the examples in chapter 4.6-7). As radical as the idea may seem, it is not itself original, as revealed in the next section. What is distinctive about the present argument is that, instead of starting from such a proposal and seeking to justify it by appeal to its consequences, I intend to argue for such a system, starting from basic ideas of democracy and fairness in adjudicating between persons. As such, the argument begins with general considerations about democracy and political equality, leading to criticism of
    15 16
    
    Guinier (1994) p.14. Amar (1984).
    
    9 majority-rule. Lottery-voting is not fully developed as an alternative until chapter four, though it lurks in the background throughout the earlier criticisms of majorityrule. Lottery-voting is given a brief introduction here, so that the reader can keep this eventual aim in mind through the earlier material. A fuller statement must, however, await until after we have diagnosed potential problems with majoritarian systems. In essence, the proposal is that individuals cast votes17 for their most favoured option, as in a standard ballot under plurality-rule. Instead of the votes being counted up and the side with the most votes winning, however, one vote is drawn at random to determine the result. This is sometimes known as a ‘random dictator’ method, for an arbitrarily-chosen person is taken to decide the outcome, regardless of everyone else’s votes. It does, however, mean that each person’s vote has an equal chance of affecting (in fact, deciding) the outcome – because every vote has an equal probability of being drawn. Overall, the effect will be that side A in the contest has a probability of winning the vote equal to the proportion of people who vote for A. That is, if one side wins 60% of the votes, then they have a 60% chance of winning – because there is a 60% chance of one of these votes being randomly drawn. If the other side took the other 40% of the votes, however, they still have a 40% chance of winning. Thus proportionality is preserved up until this stage, though once one vote is drawn the ‘winner takes all’ – i.e. the decision goes wholly their way – and there is no further compromise when it comes to the actual policy implemented. All of these details require argument, and that will be provided throughout the following thesis. One might wonder, for example, whether it is fair that one side has a 60% chance and the other only 40%. Of course, this means that some people will have a far greater expectation of getting their way, but it follows from treating each
    17
    
    I avoid the term ‘election’ as I am concerned with direct decision-making. There is danger of ambiguity though, because ‘votes’ may mean election or an individual’s expression of preferences. I hope the meaning is clear to the careful reader.
    
    10 person equally – what groups get is proportional to their size. This proportionality is certainly more equal than majority-rule, where the 60% are guaranteed to get all their way. The other alternative – giving every group an equal chance of getting its way, regardless of its size – may seem just, but is not democratic, for it wholly ignores numbers – it would be as good, on this proposal, to have one vote as to have all bar that one vote18! Even once we accept proportionality, however, it may be objected that proportional chances introduce it in the wrong place – for once the lottery has taken place, some people have all their own way and others nothing, so there is still no retrospective equality. It is not my aim to defend retrospective equality, however. The problem with majority-rule is a procedural one – there is no point in members of a permanent minority continuing to play the democratic game, for it is already predetermined that they will lose. Maybe sometimes a compromise on the final outcome is the best way to respect all equally, but sometimes such will be impossible or result only in a ‘fudge’ that pleases no one. Lottery-voting does not rule out a compromise that all can agree to, for instance after deliberation, but where such an accommodation cannot be reached it takes proportional chances to be the fair way to decide between conflicting interests. This will hopefully lead to all getting their way sometimes, but this result is merely a likely consequence of a fair procedure, not its main motivation. Moreover, it may be hoped that lottery-voting will encourage mutual understanding and a spirit of tolerance – because everyone knows they are not guaranteed to get their way, so no one will want to oppress others, since they know those others may win next time.
    
    18
    
    A similar argument is made by Jones (1983) p.175.
    
    11 These issues, and more, are addressed at greater length in what follows, so they cannot be settled decisively here – for now, I only wish to outline what lottery-voting is, to aid in the understanding of the argument for it which follows.
    
    (0.4) Literature Review If we take seriously the idea that each vote should have an equal chance of determining the election, then one way in which this can be realised is by randomlyselecting a single vote and taking that to decide the outcome. A number of theorists briefly discuss such a proposal, usually only as a starting point or reductio ad absurdum. For instance: Robert Paul Wolff considers and rejects such a proposal, observing that “legislation by lot would offer some chance to the minority, unlike rule by the majority, but it would not offer to each citizen an equal chance that his preference be enacted”19. This is to assume a different account of fairness, which I shall argue in chapter 3.10 is undemocratic – we cannot give each individual an equal chance of getting their way and respect votes. In any case, it is unclear why Wolff cares whether chances are equal, since his strong anarchism would presumably reject any procedure that involved a decision going against one’s conscience or autonomy, even if one had had an equal or greater chance of success20. Bruce Ackerman notes that “The more familiar way of making a political outcome responsive to a constituency is to add up the judgments of individual citizens to form an overall total representing the view of society… [But] there is a second way of relating citizen views to political outcomes. Under this “probablistic”
    
    19 20
    
    Wolff (1976) p.45. Hyland (1995) pp.141-4.
    
    12 approach, every citizen is given a finite chance of deciding the political outcome” 21. He concludes that there is no reasoned basis to prefer majority-rule to a responsive lottery. Peter Jones, having earlier criticized the view that political equality requires majority rule22, goes on to describe a lottery-based alternative: “Suppose a group of individuals agreed to make decisions which applied to them collectively by way of a lottery. For every issue there would be a lottery in which each individual held one and only one ticket. The individual who held the winning ticket for a particular issue would have the right to decide on that issue on behalf of the whole group. Thus, for any issue, each individual qua individual would have an equal chance of being the decider. The odds in favour of any particular proposal being adopted would be proportionate to the number of individuals who favoured that alternative in the total group”23 David Estlund also considers the proposal, which he calls ‘Queen for a Day’, on the basis that it amounts to a random dictator for each issue, and admits: “I know of no strong moral argument against it as compared with ordinary voting. Insofar as it is distasteful, bear in mind that none of the approaches to democratic legitimacy canvassed in this essay has any reason to reject it. It is fair, and it can take place after individual views are shaped by public deliberation”24 Even so, the idea is often given short shrift. The only sustained defences I am aware of are two articles by the aforementioned Akhil Amar25. Even where others admit they have no reasoned basis on which to reject such a proposal, they put it aside remarkably quickly. This is true even of those willing to embrace a significant amount of randomness, for example: Having spent several pages on its advantages, Jon Elster dismisses it in less than page, remarking that:
    
    21 22
    
    Ackerman (1980) p.288. Jones (1983) p.160. 23 Jones (1983) pp.170-1. 24 Estlund (1997) p.193. 25 Amar (1984) and (1995).
    
    13 “[L]ottery voting has several disadvantages which explain why it has never been adopted and suggest that it never will be. Most obviously, the lack of continuity among the representatives counts against the proposal… Furthermore, the predictable rise of numerous small parties would make the Fourth French Republic a paradigm of stability by comparison… Finally, the risk of some lunatic fringe coming into power would not be acceptable, even if the chance were very small”26 It is not clear that all of these criticisms are successful. The point of lottery-voting is to break up the two-party hegemony that typifies countries with a first past the post electoral system in order to represent minorities. This will lead to the rise of numerous small parties, but there is no reason why this must obviously be more unstable than any other system of proportional representation. Since proportional representation is stable in many countries, using examples like the French Fourth Republic, or Weimar Germany, to discredit such systems is unfair – presumably the electoral system was no more than part of the problem in those cases. Nor is it obvious that lottery-voting would create a lack of continuity amongst representatives, for popular incumbents would still be likely to retain their seats and change would still only take place in elections every few years. The final worry, about extreme minorities, may be more substantial, and it is one I address in chapter five. Neil Duxbury argues “were such a system of lottery voting to lead to the emergence of numerous small parties, formation of governments might prove difficult if not, on occasions, impossible to achieve” and concludes “Lottery voting does not appear to constitute a particularly promising combination of decision-making devices”27. Barbara Goodwin provides a literature review covering numerous proposals for using lotteries28. She argues that many, including Amar’s lottery-voting, only give the lottery a very limited role – by, for example, combining it with voting or restricting it to the election of representatives not determination of policy – and that
    26 27
    
    Elster (1989) pp.89-90. Duxbury (1999) p.150. 28 Goodwin (2005) pp.181-90.
    
    14 these limits show a lack of faith in the lottery and/or equi-competence of the people29. She goes on to point out that the rationale for lottery-voting would logically lead to the abolition of representatives altogether30. Amar proposed lottery-voting not for making decisions, or even individual appointments, such as the president, but for electing representative chambers. The random element could therefore be seen as a sampling mechanism, approximating proportional representation. Most of what discussion there is, therefore, focuses on the potential use of lottery-voting in such contexts. My concern here is not, however, with representative democracies (though I have some remarks on sortition-based proposals in chapter 4.3). Representative democracy is left aside because it involves further complexities, for instance whether lottery-voting should be used in electing representatives, their decision-making, or both, and why it would be preferable to a non-random form of proportional representation. Electing a representative is merely one decision that a group of individuals can make and, if it is reasonable to employ lottery-voting for such decisions, then it may also be reasonable to use it in making other decisions. My focus is on cases of collective decision-making in which all are supposed to participate as equals31. I therefore ask whether Amar’s lottery-voting could be applied to other cases of direct decision-making; something that has received even less attention in the existing literature. Whether lottery-voting – or any other democratic method – will be appropriate in a given circumstance depends on the specifics of that case, but some examples are given in chapter 4.6-7 of cases where lottery-voting may be, all things considered, at least as good as any other decisionmechanism.
    
    29 30
    
    Goodwin (2005) p.190. Goodwin (2005) p.191. 31 Note that these need not be democratic as such, because the group deciding as equals may be a small oligarchy.
    
    15 While lottery-voting may indeed face problems, these will be addressed in the substantive parts of the following thesis. For present purposes, I merely want to motivate that further consideration. Having seen how briefly lottery-voting is considered, if at all, in most of the mainstream literature, I want to suggest its potential interest by showing its relevance to three recent books, all of which neglect the possibility. These books are Richard Vernon’s Political Morality32, Anthony McGann’s The Logic of Democracy33 and Andrew Rehfeld’s The Concept of Constituency34. I will now briefly summarize the arguments of each, showing how lottery-voting might fit in.
    
    (0.5) Political Morality Richard Vernon’s Political Morality: A Theory of Liberal Democracy35 attempts to resolve perceived tensions between liberalism and democracy. For present purposes, however, let us focus on Vernon’s argument for majority-rule, which I will argue actually better supports lottery-voting. It seems that Vernon either has to accept lottery-voting or provide a better justification for majority-rule, which rules out lottery-voting. Vernon begins with a historical narrative: since the decline of non-political – for example, religious – authority, societies are forced to negotiate arrangements for collective decision-making and establishment of authority36. Adopting an
    
    appropriately contractualist version of democracy, therefore, Vernon suggests we would adopt a limited majority rule. He supposes a liberal default injunction against
    
    32 33
    
    Vernon (2001). McGann (2006). 34 Rehfeld (2005). 35 Vernon (2001). 36 Vernon (2001) p.19.
    
    16 coercion, which is why we need to justify democratic decision-making that imposes on everyone. “If the use of compulsion were not something requiring justification, there would be no need to give one; so the claim that majorities have this entitlement implies a general background prohibition against compulsorily substituting one’s own judgement for another’s”37. Vernon appeals to a Lockean idea of compensation to limit the majority38. The ‘political morality’ he refers to in his title is not some moral constraints on officials, but rather restraint on behalf of the majority39 that safeguards the minority from ‘uncompensable’ defeats. If one suffers material loss as a result of the ruler’s decree, one can in principle be compensated; whereas there can be no compensation for loss in spiritual matters, such as eternal damnation. The point is not that the majority should actually compensate the defeated minority; but that the minority can themselves come to terms with a compensable loss. “The majority has an obligation to leave minorities a space in which they can adjust their lives to a public environment that they did not choose”40. Vernon illustrates what this might mean in the case of the abortion debate. Being forced to have an unwanted child is an uncompensable life-changing experience41; whereas the pro-lifer whose proposed ban on abortion is ruled out can go about limiting abortion in other ways – e.g. reforms of adoption, sex education, promoting contraception and so on42. Thus liberal democracy means not that the democratic impulse of majority-rule is limited by
    
    37 38
    
    Vernon (2001) p.104. Vernon (2001) pp.75-6, and 149. 39 Vernon (2001) p.90. 40 Vernon (2001) p.148. 41 A claim contradicting Tooley (1972) pp.52-3. 42 Vernon (2001) p.82.
    
    17 something else (liberal rights), but rather that, beyond a certain point, the rationale for majority-rule itself runs out43. Proper liberal democracy is self-limiting in its scope. Insofar as it can be considered simply about either, Vernon’s Political Morality seems more a theory of democracy than liberalism. Liberalism, he assumes, offers us certain areas of freedom in which we are protected in the exercise of our judgements. His ‘private sphere’ seems narrow – confined only to what would be ‘uncompensable’ – but in keeping with traditional pictures of liberalism. While this is largely assumed as a background, however, Vernon offers his own quite original arguments for why we should value the democratic process – starting out by rejecting, on grounds of incommensurable value conflict, the utilitarian alternative that majority-rule will be conducive to the greatest good of the greatest number44. After discussing both outcome- and procedure-based defences of democracy, which he finds in Rousseau and Habermas respectively, Vernon outlines a combination view, which he calls ‘processual’. What is valuable is an outcome, but not the electoral outcome which could have been brought about by other means; rather it is the result of the deliberative process itself – i.e. the fact that arguments are advanced, reasons considered and interests generalized. In this way, there is an improvement in public reason, and everyone’s capacity as a moral reasoner is equally respected. Once this process has taken place, the actual result of the subsequent vote is immaterial. It is explicitly not assumed that more information will lead to either consensus or better electoral outcomes45. The main reason for individuals to cast informed, reflective votes is not backward-regarding, but rather to ensure the continuation of the reason-giving deliberative process next time. In this way, they
    
    43 44
    
    Vernon (2001) p.72. Vernon (2001) pp.43, 77, and 120. 45 Vernon (2001) pp.48-9, 64-9, 77, 123, 139, and 148.
    
    18 ensure that politicians continue to have incentives to provide generalized reasons and cater for the interests of all46. There is, however, a flaw in Vernon’s case for majority-rule, which is insufficiently considered. Having abandoned the claim that a majority judgement will even necessarily best reflect the outcome of the preceding discussion47, Vernon denies any special privilege to either a relative majority or even a 50%+1 threshold48. His case for majority-rule rests simply on the claim that “majority rule has the virtue of encouraging the generalization of political argument, which is an important service to public reason; and it also has the virtue that because the counting of votes records a fact, it can yield the unequivocal answer that we need in order to have a political authority. Both of these justifications have weight even for the outvoted”49. That is, majority-rule gives politicians reasons to appeal to as wide a portion of the electorate as possible, and produces a determinate answer. If, however, these are the only virtues of majority-rule50, then picking the winning vote at random, or lottery-voting, seems to better meet Vernon’s standards. If the majority verdict is no better in itself, then one might as well simply pull a vote out of the hat, as it were, and take that as authoritative. This yields just as determinative answer as the fact provided by counting votes. Indeed, a lottery has long been viewed as a fair way to decide between ties or incommensurable claims51. As for giving parties an incentive to ‘generalise reasons’, it seems that lottery voting fares even better than majority-rule, because lottery-voting gives parties reason to appeal to as many voters as possible since 50%+1 is not enough to guarantee victory.
    46 47
    
    Vernon (2001) pp.70, 79, and 142. Vernon (2001) p.69. 48 Vernon (2001) pp.50-1, and 69. 49 Vernon (2001) p.142. 50 One other Vernon (2001) p.70 considers, in the case of small groups, is needing the goodwill of a majority for action to proceed, but he rejects this in larger political communities. 51 E.g. Greely (1977), Sher (1980), Neurath (1983) and the examples in chapter 3.2.
    
    19 Vernon rejects supermajority requirements because, if a bill needs 67% support to pass, one only needs to appeal to the sectional interests of 34% to block it. Requiring majority support means that one has incentives to offer reasons to at least half the people, and maybe more on the grounds not all will necessarily be persuaded. If one only needs a majority, however, then there is no need to appeal to everyone. If 20% of society seemed unlikely to accept your arguments, it would not matter and one would have no reason to appeal to them, as the other 80% are more than enough to ensure victory. Picking a random vote, however, means that electoral success is never guaranteed (short of unanimous persuasion, in which case the vote as well as the lottery is superfluous). When this probabilistic element is introduced, it is no longer enough to have – say – 60% support; rather the more votes you win, the greater your chances – and thus there really is an incentive to appeal to everyone. Such a scheme epitomizes the requirement that electoral outcomes not be predictable in advance52. Vernon might seem hostile to such an idea, judging from several earlier remarks about lotteries, but in fact none of these criticisms tell against the idea of lotteryvoting. What Vernon has in mind, and rejects, is simply deciding what to do randomly, by a simple lottery in which each option has equal chances53. Even assuming that we can independently identify discrete options, such a lottery might be fair in one sense, but it would be undemocratic, because it ignores people’s preferences54. By giving those on each side equal chances of satisfaction, it may reflect a certain conception of justice, but it totally ignores numbers – so one vote is as good as 99% of them, and each option would get a 1/n chance. It is such a proposal that Vernon rightly dismisses because of this lack of responsiveness. As Vernon puts
    52 53
    
    Vernon (2001) p.39; c.f. Przeworski (1991), discussed in chapter 4.10. A possibility suggested in Estlund (2007) e.g. p.80. 54 This will be argued more fully in chapter 3.10.
    
    20 it, “One way in which the majority principle differs from a coin-toss or lottery is that it gives voters an opportunity to influence the outcome in their favour, not just to expect favourable outcomes with a certain probability”55, to which he adds that majority-rule also provides citizens with reason to acquire information, because their vote matters56. Lottery-voting shares both these advantages, since citizens can increase the chances of a given option winning by voting for it and since every vote matters – because it may win – they also have reasons to acquire information57. So, to recap, Vernon suggests that we want a procedure that produces determinate outcomes, and gives politicians reasons to appeal to as many people as possible. He accepts majority-rule, because it is such a procedure, but in fact lotteryvoting provides just as determinate an outcome and probably a greater incentive to generalize one’s appeal, since a simple majority is not necessarily enough for victory58. As such – despite his hostility to simple lotteries – Vernon should either accept lottery-voting or needs to offer some further argument against it, if he is to defend majority-rule.
    
    (0.6) The Logic of Democracy Anthony McGann’s The Logic of Democracy: Reconciling Equality, Deliberation and Minority Protection59 is a very worthwhile read, intelligently combining normative political philosophy, social choice and empirical studies of his favoured ‘consensual’ democracies of Western Europe (his favoured examples being
    
    55 56
    
    Vernon (2001) p.43. Vernon (2001) p.46. 57 Vernon (2001) p.52 [ch.2 fn.5, ref. to p.43], cites Estlund (1997)’s ‘Queen for a day’ proposal, but doesn’t consider how it differs from the simple lottery he rejects. 58 One may argue there is less need to persuade as many people, since 20% may be enough – but this misses the point that one always has an incentive to persuade more if one can. 59 McGann (2006).
    
    21 Denmark, the Netherlands, Norway and Sweden60). Though it was only published late in the development of this thesis, many of his arguments chimed in with and influenced the final expression of much of what was said in chapters 2 and 6. McGann convincingly shows how the goal of political equality can produce determinate institutional recommendations, even in modern representative
    
    democracies; specifically, proportional representation for electing legislative representatives and then majority rule at the decision-making stage. He argues that such procedures not only manifest political equality and citizen sovereignty, but also foster deliberation and actually protect minorities better than supermajoritarian constitutional limits. One strand of the argument is to show that Riker’s pessimism about democracy is ungrounded. The cycling results of social choice do not undermine any possibility of meaningful democracy, all that they do is undermine any idea of a single ‘will of the people’ or correct decision, i.e. what Riker calls ‘populism’. It does not follow, however, that we are forced to adopt a minimalist or ‘liberal’ defence of democracy – indeed, McGann points out that Riker’s arguments may undermine even such a position. Instead, he argues that democracy should be seen as a pure or quasi-pure distributive procedure – a position in keeping with my argument through chapters 13. We can endorse democracy on the grounds that it is a fair procedure for determining who gets what, without having to make claims about it expressing some mythical ‘will of the people’. Most of what McGann has to say is very sensible, but his defence of majorityrule is over-hasty and, as we shall see, relies on a crucial empirical premise. Majorityrule is defended as satisfying political equality, specifically May’s anonymity and
    
    60
    
    McGann (2006) p.177.
    
    22 neutrality requirements. In his original argument, however, McGann is careful to state that he is considering only determinate procedures: “May’s (1952) theorem shows that the only determinate procedure for choosing between two alternatives that satisfies political equality is majority rule. This eliminates all the commonly used alternatives to majority rule, as any other nonrandom binary procedure privileges either some voters or some alternative”61 Later, when recapping and building on the argument, these qualifications are dropped, leading McGann to make a series of stronger claims: “May (1952) shows that majority rule is the only positively responsive, decisive, binary voting rule that satisfies anonymity (voters are treated the same regardless of their names) and neutrality (alternatives are not discriminated between on the basis of their names)”62; “Majority rule is the only decision rule that is fair in the sense of treating all voters and all alternatives equally”63; “The only decision rule that is fair in the sense of treating everyone equally is majority rule”64; “As has been shown previously, the only social decision rule that treats all people equally is majority rule”65. As argued in chapter 6.4-5, lottery-voting respects political equality, defined in terms of anonymity and neutrality. Of course, one may want to reject lottery-voting on other grounds, but this requires argument, whereas McGann simply refused a priori or neglected to consider it. We can see, however, why this might be a mistake if we consider a case where there is a permanent majority. McGann argues that, far from being a fatal problem, cycling is actually important to the operation of majority rule, because it implies there is no permanent majority or minority. This means not only that any given group in society know they could win next time, but they know that they could win this time. McGann assumes
    61 62
    
    McGann (2006) p.80 [emphasis added]. McGann (2006) p.89. 63 McGann (2006) p.134. 64 McGann (2006) p.168. 65 McGann (2006) p.174.
    
    23 majorities must be coalitions of minorities, and so – as in the classic ‘divide the dollar’ game – are always liable to be split if another group can make a better offer. This, he argues, will mean that it is not in the interests of any winning coalition to oppress a losing minority, because if they push too hard that minority might strike a deal with some of the others, ‘selling’ their support very cheap to join a new winning majority66. McGann’s empirical studies seem to bear this out. As he points out, the consensual democracies operate largely by majority-rule, with what vetoes there are generally collective. He observes that, in these countries, winning majorities are always coalitions of minorities, but do not oppress minorities, perhaps for the very reason he suggests. However, while McGann is interested in these countries precisely because they match his institutional prescriptions (proportional representation and majority-rule), this means that he looks only at the ‘easy cases’ – ones more or less fitting Dahl’s description of a polyarchal society where there is no single majority, and so majority-rule operates reasonably well by giving all a chance to participate in winning coalitions (see chapter 3.11-12, below). However, even if society is in fact made up of many different minorities, it does not follow that all are equally likely to enter a winning coalition – e.g. if there are a number of different religious denominations, all of whom are somewhat distrustful of each other, but prefer any other religion to atheists67. Then there is the problem that some societies do have permanent majorities, rather than cross-cutting cleavages. McGann admits that lack of cycling is a problem for this very reason, but has nothing to say about what to do in such cases.
    
    66 67
    
    McGann (2006) p.109. For criticisms of Dahl, along these lines, see Lively (1975) pp.20-4 and Hyland (1995) pp.89-90.
    
    24 In these situations, lottery-voting offers a potential solution. Pace-McGann’s incautious comments, it does respect anonymity and neutrality (i.e. political equality) and citizen sovereignty. Of course, once this is on the table, there is room for further debate about its merits vis-à-vis majority-rule. Like Vernon, McGann argues it is majority-rule that best promotes discussion, by requiring people to maximize those persuaded to their view68. Lottery-voting may be better, however, because it always gives all parties – majorities and minorities – an incentive to try to persuade more people to their view. Admittedly, a given group may always decide to break-off negotiation and simply hope their chance comes up, but McGann says nothing about the case of an intransigent permanent majority (because he simply assumes such does not exist). Further, McGann argues that majority-rule, even with cycling, will not produce any outcome, but likely be confined to a reasonable, uncovered set69. Lottery-voting may allow for a wider variety of outcomes, but they will be limited to the extent that they are always someone’s first preference (which means that they are extremely unlikely to spiral as arbitrarily far as predicted by some chaos results). These remarks do not amount to a case against McGann and all of these points are open to further argument, but they should be argued. McGann’s defence of majorityrule seems to apply only in favourable empirical circumstances, and he does nothing to engage with the alternative of lottery-voting, which may solve some fundamental problems in cases where there is a permanent minority.
    
    68 69
    
    McGann (2006) p.135. McGann (2006) pp.61-70.
    
    25 (0.7) The Concept of Constituency Andrew Rehfeld’s The Concept of Constituency: Political Representation, Democratic Legitimacy, and Institutional Design70 focuses on representation, rather than direct decision-making. Rehfeld, however, employs lotteries at a different stage, in allocating voters to constituencies, and then assumes majority-rule in elections and voting. He advocates abandoning territorial representation altogether, arguing that large constituencies do not represent local communities anyway, but rather produce legislators more concerned with pushing ‘local pork’ than promoting the common good71. As an alternative, he proposes random constituencies: on coming of age, every American will be assigned to one of 435 constituencies, which will be theirs for life. Consequently, each representative will truly stand for a cross-section of the nation, providing them “self-regarding incentives to act as if they cared about the common good”72. Rehfeld is ready to endorse randomization – at one level – to address a perceived problem of contemporary democracy. His critique of territoriality – developed with lengthy reference to its historical justification and development (his chapters 3-6) – seems sound. He is right to point out that territorial representation – even if deeply embedded in the US by the federal system – is not necessary and that the slogan ‘all politics is local’ does not justify such constituencies because it is true in consequence of the system73, and we may instead favour representation by occupation or ethnicity74. The deeper problem is that, whether based on locality or other natural interest groups, competing partisan interests – the ‘pluralist’ model –
    
    70 71
    
    Rehfeld (2005). Rehfeld (2005) pp.8, 21, and 152. 72 Rehfeld (2005) p.xiv. 73 Rehfeld (2005) pp.8, and 152. 74 Rehfeld (2005) pp.36-9, 146, and 159.
    
    26 results in a legislature divided over ‘zero sum’ issues, rather than united in pursuit of a truly common good. Rehfeld’s solution is to make each constituency a random sample of the whole nation, so each representative is accountable to a microcosm of the whole electorate. The result is that if blacks make up 15% of the whole population, they will be 15% of each constituency75. This seems to deny them the special protection of gerrymandered districts that effectively ensure black representation; but Rehfeld suggests that some minorities may be better served by having a voice in all districts, rather than controlling a few but being anonymous in most76. This is an empirical question, but many would be unhappy with the consequence he envisages and accepts – that a 51% majority of the nation, by becoming a 51% majority of each constituency, could win 100% of the seats77. In commenting on PR and group rights, Rehfeld says: “If constituencies are defined by their members’ similarity of voice (if African American representatives, for example, come from predominantly African American districts), then we promote diversity of voice within a representative body by denying it within the constituency. The demand that representative bodies should be diverse thus subordinates the deliberative diversity within a constituency to that of the legislature. Yet, if good and proper deliberation requires that all voices are heard, then it would appear that we have to choose between diversity within the legislature and diversity among their electoral constituents. Or, in terms of exclusion, the question becomes, do we exclude “voice” from the representative body itself, or from the constituent groups who select their representatives?”78 He may be right that a diverse legislature is often ensured by creating homogeneous electoral groups, and further that such groups (exposed only to their own viewpoints, not others) may radicalize, making legislative compromise harder.
    
    75 76
    
    Rehfeld (2005) p.214. Rehfeld (2005) p.11. 77 Rehfeld (2005) pp.227, 231, and 244. 78 Rehfeld (2005) p.27.
    
    27 Nonetheless Rehfeld’s preference for diverse constituencies seems to rest on an unjustified assumption – empirical or normative – that democratic deliberation has to take place with fellow constituents79. Of course, this depends on whether political discussion focuses around general issues – such as the importance of the environment – or particulars, like specific candidates. If Rehfeld is envisaging the latter, then it is more likely that one will discuss the merits of particular candidates with others who face the same electoral choices. Until recently, he suggests, the need for discussion between constituents constrained us to local constituencies; non-territorial constituencies such as he recommends only became possible with mass media and particularly the internet – through which he imagines most debate and campaigning taking place80. While it is true that the internet has allowed for much democratic debate, such as political blogs81, it seems unlikely to me that citizens would deliberately seek out others with whom they had little more than a randomly-assigned constituency in common – it is far more likely they will use new technology to converse with those local to them and/or sharing similar interests or views. Leaving aside these problems for now, and assuming that Rehfeld’s goal of diverse constituencies is normatively desirable and that his proposal is practically feasible, the fact that a single group – even a majority – could seize the whole legislature82 still seems problematic. Even when individual members of that majority are exposed to competing minority viewpoints in their constituency, one has to wonder how much check that will really be. It seems that legislators will only have to
    
    79 80
    
    Rehfeld (2005) pp.51, 118, 129, and 215-7. Rehfeld (2005) pp.162, 174-6, 217, and 243-4. 81 E.g. a few quick links take me to (amongst others): http://publicreason.net/, http://virtualstoa.net/, http://crookedtimber.org/, http://considerphlebas.blogspot.com/, http://bensaunders.blogspot.com/, http://www.makemyvotecount.org.uk/blog/… 82 Rehfeld (2005) pp.227, 231, and 244.
    
    28 appeal to the national majority – e.g. whites83 – to be sure of a majority in their sample constituency. While Rehfeld seems happy to accept majority-rule in his random constituencies, this is neither necessary to his project nor conducive to a common good that includes everyone. In his defence though, it should be pointed out that Rehfeld is at pains to stress that defining districts is something independent from, and prior to, determining voting procedures84. Rehfeld’s commitment to majority-rule can therefore be regarded as only provisional for, once a district is randomly-constituted, it is still an open question whether to adopt majority-rule85. Lottery-voting could be an attractive mechanism to complement random constituencies, because it would allow us to combine them with a diverse legislature. Rehfeld criticizes existing methods of proportional representation for choosing a diverse legislature at the cost of homogeneous constituencies86, but he recognizes that we might want diversity in both constituencies and legislatures87. His solution is a quota system, guaranteeing a certain number of, e.g., black and female representatives88. This creates one kind of diversity, but they will still all be black or female Republicans – it is not obvious this will result in much diversity of political viewpoints. I think the groups that matter for representation are not those based on ascriptive features such as sex or ethnicity, but those people identify with by their voting. While random constituencies and majority-voting produce a legislature dominated by the majority, it is quite possible to adopt randomly-assigned
    83 84
    
    In his futuristic utopia, Rehfeld assumes whites will be a minority (p.241). Rehfeld (2005) e.g. pp.7, and 21. 85 Rehfeld (2005) p.7: “Maybe they would use majority rule or plurality rule. Maybe they would select a representative by lottery. Our concern here is not, then, with voting rules or the questions of singlemember or multimember representation. It concerns the prior question of how constituent groupings themselves affect the legitimacy of a political regime.” 86 Rehfeld (2005) pp.13, and 26. 87 Rehfeld (2005) p.235. 88 Rehfeld (2005) pp.337-8.
    
    29 constituencies (a la Rehfeld) and lottery-voting (a la Amar’s original proposal89), and thereby produce diverse constituencies that mirror the whole nation, and a legislature that also includes members of all these groups. Of course, since both procedures rely on randomization, neither result is logically guaranteed – but the large numbers concerned make these generalizations pretty much absolute. In pursuing heterogeneous constituencies, Rehfeld neglects the importance of different political views (as opposed to group representation) within the legislature itself. If the aim is to give representatives an incentive to pursue a common good, then any electoral mechanism that only requires them to appeal to a majority seems to cast doubt on this. However, if Rehfeld’s radical proposal of random constituencies is combined with another level of randomization – in the election of representatives from these constituencies – then we can get diverse constituencies and legislatures. Again, lottery-voting was not something considered, but here it helps address what seems a grave problem, and thereby better serves Rehfeld’s ultimate goal.
    
    (0.8) Plan of the Thesis Having explained what it is I want to argue, and why it is important, I turn now to how the argument will proceed. Apart from the above outline, lottery-voting itself is barely introduced until chapter 4, in what begins the second part of the thesis, because it is something I wish to argue to, rather than from. Thus it will be helpful to set out here the stages through which the argument proceeds, so that its overall structure can be appreciated in advance – and readers will hopefully be reassured that many questions they have now will be addressed later.
    
    89
    
    Amar (1984).
    
    30 Chapter 1 introduces the notion of ‘rule by the people’. Coordination can often make all better off, but since one pattern of coordination may benefit some more than others, there may be a conflict of interests over which system of cooperation should be imposed. Equal treatment of each person’s agency amounts to democracy, the form of collective decision. However, while many have simply assumed that democracy and political equality straightforwardly imply majority-rule, this is not so. There is no ‘natural necessity’ to majority-rule and, even if the greatest force would be likely to win out, e.g. if the decision came down to violence, we cannot reach a normative justification from an empirical fact. Having accepted the principle of political equality, we still need to know how it is to be institutionalized. Majority-rule is popularly supposed to realize political equality, but it is not obvious that it is the only way to do so, so we still need an argument to justify it. The second chapter takes up the first family of arguments for majority-rule, namely broadly ‘utilitarian’ arguments that it will best serve the general interest. Majority-rule and utilitarianism are often associated, because both seem to aim at the ‘greatest happiness of the greatest number’. In fact, however, I argue that the two can diverge because they understand this differently; utilitarianism emphasizing the great happiness and majority-rule the greatest number. Consequently, majority-rule cannot guarantee the utilitarian outcome properly understood, since it neglects the intensity of preferences and interests that are not voted for, which means the outcome supported by the majority need not be best after all. Further, even if utilitarian outcomes are reached, this is an inadequate conception of fairness, because while it treats each person’s satisfaction as equally important it does not guarantee any equality of outcome – if there is a permanent majority, they may be satisfied each time, at the expense of the minority.
    
    31 There is, however, an alternative consequentialist-based argument, offered by epistemic democrats. Those writers argue that we can identify ideal outcomes – which may be simply utilitarian or include considerations of justice – independently of people’s votes. They argue that, if voters seek to realize such outcomes, rather than merely furthering their personal interests, and we assume the majority are more likely to have successfully identified them, then majority-rule is justified. There are a number of problems with this line of reasoning, however. Requiring voters to identify and vote for impartially best outcomes places great epistemic and moral demands on them and it is far from clear that a majority are necessarily more likely to be correct. Most fundamentally, however, I have argued that democracy is a matter of adjudicating between competing interests, so the ideal of an ‘impartial social best’ will be indeterminate – while all agree on the need for coordination, they disagree over which scheme of such they prefer. This means we need to look not simply at the outcomes produced by majority-rule, but whether it is fair to all involved. The idea of procedural fairness is taken up in chapter 3. It is often argued that majority-rule is fair because it gives each person an equal chance of satisfaction. This is only true though if each person has an approximately equal chance of being in the majority – that is, if the composition of majorities and minorities is fluid and effectively random. If there is a permanent majority/minority divide, then the same people will win or lose each time, and the minority do not enjoy even prospective equality. In such cases, it is hard to accept that majority-rule really does treat everyone equally. If we want to give everyone an equal chance then we can employ a lottery. While it is obviously fair to toss a coin to decide between two people’s competing claims, however, it is unclear whether it is still fair to give equal chances to groups
    
    32 that differ in size. John Taurek defends coin-tossing in such cases on the grounds that it gives each person an equal chance of satisfaction90 and Estlund also points out that random decisions treat each person equally91. This seems to realize one form of equal treatment, by giving each a 1/n chance of satisfaction, where n stands for the number of available options (rather than voters). Nonetheless, such a lottery seems less than democratic because it neglects the preferences of voters, meaning it makes no difference whether votes are split 50/50 or 90/10 between two options – either way, each is given an equal chance. I think this defect results from regarding voters merely as patients, rather than as agents. I argue that the most appropriate way to fairly adjudicate between unequally-sized groups is a weighted-lottery that proportions each group’s chances to size – so one-third of voters would have a one-third chance of victory. This means that each person counts equally, in contributing their 1/m chance of victory to whichever option they vote for, where m stands for the number of voters rather than options. In this way, each person’s preferences have some impact on the process, however others have already voted. Following this abstract account of equality, chapter 4 turns to how it may be implemented in democratic practice. Here I develop the brief account already given of lottery-voting, noting that it draws both from ancient Athenian use of lotteries and modern ideas of voting. Everyone casts a vote but, instead of the option with most votes winning, a single randomly-selected vote determines the outcome. This means that, even when the distribution of preferences is predictable beforehand, each individual still has an equal chance of being decisive. This differs from the simple lottery rejected in the previous chapter, since each person’s chances of satisfaction depend on the amount of support their favoured alternative enjoys. Such a scheme
    90 91
    
    Taurek (1977) p.303. Estlund (2007) pp.6, and 82.
    
    33 therefore realizes proportional rather than equal chances. Moreover, I argue that the contingency of outcomes it creates satisfies certain understandings of both democracy and fairness. This account is developed by suggesting instances of small-scale decisionmaking in which such a procedure seems particularly appropriate. For example, if a small group are considering purchasing a set of books, and have to make decisions over whether to do so, how much to spend and what to buy, there is no obvious way to make all of these decisions. If they set an amount and then vote whether to spend that much or not they may get a different answer from if they vote whether or not to spend something and then try to decide an amount. Moreover, it will be hard for voters to decide whether or not to back one decision without knowing the outcome of the other – it may make perfect sense, for example, to support high spending but think low spending literally worse than nothing. Lottery-voting offers one way of treating everyone equally – we simply have each person declare their preferred solution (how much to spend and how) and have one of those outcomes selected by lottery. This can be considered a ‘random dictatorship’, but it treats everyone equally, allows each to express their preferred choice and means that popular preferences have a greater chance of victory (even if no one expresses exactly the same combination, those with similar tastes are more likely to get something close to their ideal). Chapter 5 further considers the practicalities of such a proposal. I do not so much advocate particular solutions as explore the possibilities of lottery-voting, e.g. whether it is combined with open or secret voting and whether vote counts are announced or merely the winner. These matters will, of course, impact on how lottery-voting fits into wider democratic practices, such as deliberation and collusion. I point out that lottery-voting has certain advantages, for example it may encourage
    
    34 deliberation because no group short of everyone is ever guaranteed victory so all – both majorities and minorities – have incentives to try to convert others to their cause, thereby increasing their chances of winning. Further, I consider the worry that extreme minorities may win, much to everyone else’s dissatisfaction. Again, there are various ways this can be addressed – for example, we might make constitutionally-protected rights immune to any form of democratic decision-making or exclude small minorities of votes by imposing a threshold before any option receives a chance. On the other hand, we may simply accept such results as democratic. We cannot be committed to giving all voters equal chances of success and complain that the outcomes are not to our liking when people vote in ways we disagree with – if people vote for extremists, then extremists may win. This approach need not be as dangerous as might be thought, because a lot of extremist voting, e.g. for the BNP, may be no more than protest voting. It is important to remember that how people vote may be an endogenous consequence of the voting system. Where only a majority will ever win, it is easy to cast a vote for a small party with little consideration. Lottery-voting, however, requires each person to consider seriously that whatever option they vote for may actually win, and thus show more responsibility in their voting – which means lottery-voting seems to better-fit defences of democracy based on its moral and educative effect on citizens. Having described and developed the proposal at some length, the final two chapters turn to evaluating lottery-voting against what seem reasonable normative criteria to demand of any collective decision-procedures. Chapter 6 focuses on the formal axioms outlined by May and Arrow92, namely decisiveness, neutrality (no option is favoured), anonymity (no voter is privileged), positive responsiveness,
    
    92
    
    May (1952), Arrow (1963 [1951]).
    
    35 universal domain (admissibility of all possible individual preference orderings), Pareto (the social decision should respect unanimous improvements), independence of irrelevant alternatives (a decision between two alternatives should depend only on those options and not their ranking against non-feasible possibilities) and nondictatorship. I argue that the most normatively-compelling are those straightforwardly connected with equality, such as anonymity and neutrality, and these are satisfied by lottery-voting. The most problematic is independence of irrelevant alternatives, though this is partly due to confusion about what Arrow’s condition actually requires and difficulty applying it to a random decision-making method. Arrow’s conditions are designed to be applied to deterministic, rather than random, processes, because he is really concerned with defining a social preference based on what individuals prefer, rather than an actual electoral rule. If lottery-voting violates his conditions, it is because it operates within a different – pure procedural – conception of democracy, according to which outcomes are legitimated because they come from the procedure, rather than because they conform to some prior standard. It is no embarrassment for lottery-voting that the outcomes could have been different, for this is what gives the procedure its fairness. Finally, I conclude this chapter with two further results of interest to those working in social choice – firstly, lottery-voting is strategy-proof, because it is never in a voter’s interests to misrepresent their preferences, and secondly it facilitates weighted-voting, should that be thought desirable. My final chapter addresses the worry that deciding by lottery is simply irrational. Arrow assumed that society should act like a rational individual, and therefore be able to order all possible alternatives and choose the highest-ranked, maximizing social welfare. Chapters 1 and 2, however, developed an alternative conception of democracy, tying the importance of political equality to fairly resolving
    
    36 conflicts of interests and, in such a context, it is not obvious that we can talk of certain options being ‘socially preferred’ – the reality is that option x may be better for some and option y better for others. When we are dealing with competing interests, I assumed it is fair to decide between them by lottery, but this does not mean that the chosen outcome is better – indeed, its legitimacy comes from the fact that either outcome could be chosen. I argue that no decision-mechanism is inherently rational or irrational, what matters is whether it is rational for us to adopt a given rule for our present purposes. It can be rational to use a lottery, for instance to break a tie or resolve conflicting interests and, if my preceding argument is successful, it can be rational to adopt lottery-voting for making group decisions in certain contexts. Further, this should not be seen as a complete abdication of reason because each voter has to make an intelligent and responsible choice before the lottery comes into play.
    
    37
    
    1 Democracy as Freedom and Equality “[W]e are so deeply imbued with the ethic of majoritarianism that it possesses for us the deceptive quality of self-evidence”93 “Majority rule is justified only as a means of achieving political equality”94 (1.1) Rule of the People ‘Democracy’ comes from the Greek demokratia, meaning rule by the people. Maybe this etymology no longer tells us much about the term in modern society, however. Familiar forms of government in the early 21st century are far-removed from what the Athenians would have recognized – being in some respects intuitively more democratic (for instance, the much wider franchise), while in others perhaps less (for example, restricting meaningful participation for most to electing representatives). Nonetheless, I take it that this does reveal one crucial feature of democracy, namely that it is rule by the people. Many still associate democracy with the three conditions famously presented by Lincoln – “government of the people, by the people, for the people”95 – but only the second appears distinctively democratic. Government of the people is ambiguous, but means either simply rule by the people (as in the ‘rule of Henry VIII’ or ‘dictatorship of the proletariat’) or rule over the people, in which case it applies to all forms of government. Government for the people, meanwhile, refers to its ends rather than means. While communist dictatorships have sometimes been portrayed as democratic in this sense96, it does not seem sufficient for democracy, since even Plato’s
    
    Wolff (1976) p.42 [not emphasized in original]. Dahl (2006) p.16 [not emphasized in the original]. 95 Lincoln (1991) p.104 [‘Gettysberg Address’, 19/11/1863]; c.f. Churchill (1974) p.7565 and Sartori (1987) pp.34-5. 96 E.g. Macpherson (1966) pp.12-22. This claim is criticized implicitly by Ross (1952) pp.75-6 and 91, who insists democracy is a matter of procedure, how decisions are taken not what they are, and explicitly by Lively (1975) pp.33-5, Holden (1988) p.83, and Sartori (1987) p.35.
    94
    
    93
    
    38 Guardians may be described as rule for the people. The problem with any benevolent dictatorship is that it effectively claims to tell the people what they really do or should want. If we believe, however, that each person is the best judge of their own interests, then rule by the people will realize rule for the people. Moreover, if we take Lincoln’s three conditions as each necessary and jointly sufficient for democracy then, even if a benevolent dictatorship really does rule for the people, while it may have much to commend it, it is not democratic. Note that, on this reading, it may also be that rule by the people can fail to be sufficient for democracy – perhaps, for instance, if the people are uninformed or pursue their own interests rather than the general interest. I have little to say on these other issues or the wider definition of democracy. I do not address who should be enfranchised; my focus here is simply on the requirements of government by the people, that is how a given group of people may decide among themselves as equals. I take decision-making by equals to be a defining feature of democracy, though it is not sufficient for or restricted to such. The question that occupies this thesis, therefore, is how the people are to decide. There is no difficulty when a single monarch or dictator makes a decision for a group97. The problem addressed here is one of collective or group decision-making. Except in the easy – and usually unlikely – case of unanimous consensus, some way must be found of turning differing individual opinions into a group decision. Note again that this is not specifically a democratic problem; whatever group makes a decision needs some decision-rule. While a democratic context is concerned, equality between decision-makers could also be a property of an oligarchy. Whether or not all are involved in making group decisions, the problems of arriving at a single decision from any (non-unanimous) group are well-documented: Can we really say those who
    97
    
    Unless, of course, they want their decision to reflect people’s preferences. See Arrow (1984) pp.55-
    
    6.
    
    39 do not get their way are self-governing? And on what basis, if any, can we hold these losers bound by a decision they do not agree with?
    
    (1.2) The Possibility of Self-Government If our aim is for the people to be free, then the typical liberal solution is for decentralized decision-making. Those who take this to its logical extreme typically argue there is little, if any, role for the state. However, if there is no enforcement then it seems the only freedom realized is that of the strong to oppress the weak. If freedom is important, then it is something we want to distribute equally. Moreover, there are some decisions that simply cannot be disaggregated or that, if they are, are likely to result in a worse situation for everyone. We cannot leave each to determine their own foreign policy or legal system, for example – these decisions are necessarily collective matters and must be decided collectively. Thus it seems reasonable to assume that certain decisions need to be made collectively. We need collective coordination because it makes all better-off. It makes little difference, prior to the adoption of a shared norm, for example, whether we drive on the right or left, but we want everyone to drive on the same side of the road, whichever it is. This is a pure coordination problem that can be represented in game form as follows: Fig. 1.1 Driving Co-ordination You drive on left I drive on left I drive on right 5,5 0,0 You drive on right 0,0 5,5
    
    This is clearly a case where we want centralized decision-making, and do not really care what the decision is. While there is no particular need for this decision to be
    
    40 democratic – if some illegitimate dictator had issued the directive that all should drive on the right then we should all be morally and prudentially obliged to obey it, provided we believed sufficient others would also – we cannot simply assume that order will emerge spontaneously. Were the British government to disappear, we may continue to drive on the left, simply because that is the more salient solution to our problem, but this would not apply to cases where coordination had yet to be established and there was no agreed focal point – either because no solution was at all salient or each of us had different preferences. Suppose we want to go for a meal together, but have different preferences over food – specifically, I like Indian while you prefer Chinese. Assume it is more important to each of us that we eat together than that we have our preferred meal, thus this is still a coordination problem, except that now it is no longer a matter of indifference which option we coordinate on. This can be represented as follows: Fig. 1.2 Restaurant Co-ordination You go to Indian I go to Indian I go to Chinese 6,4 0,0 You go to Chinese 2,2 4,6
    
    As we can see, both of us would agree that we should go to the same restaurant, but we disagree which that should be98. If you think I will go to the Indian, then you should go to the Indian, but you would rather we both go to the Chinese, and think I am more likely to go to the Chinese if I expect you to go there. This is a case where, although all benefit from coordination, there is a conflict of interests over which pattern of coordination is to be chosen. Both of us want coordination, but we each prefer a different pattern of such. In this case, assuming we can decide together, it
    98
    
    Pettit (2000) makes this point when he observes “Matters of common, recognizable interests can often be advanced in different ways, where one way is more costly for this group, a second more costly for that, and where the different groups will prefer different approaches” (p.118).
    
    41 seems plausible that the fairest solution would be for us to commit to going somewhere together and then to toss a coin to decide which restaurant to go to, giving us equal chances of getting our preferred option99. This problem is easily solved because of its artificial simplicity. If there are two parties with equal but competing interests, then tossing a coin seems a fair way to resolve their differences. The more interesting problems are when we deal with larger groups, where numbers on each side are unequal. Suppose, for example, a group have regular meals together, and five of them favour Indian and three Chinese – how now should they coordinate? In this case, decentralization may be more attractive (five going to the Indian, the other three for Chinese), but assume coordination is still more important. Is it still fair to toss a coin, giving each person an equal likelihood of getting what they want? 100 Or is it fair to let the majority decide? And, if so, does this mean the group should always go for Indian, to the displeasure of the permanent minority? These are among the issues that the following thesis will address.
    
    (1.3) Equal Relations and Respect I take it that ‘rule by the people’ means rule by all of the people – for it is the wider franchise that distinguishes democracy from oligarchy. This is all very well if there is unanimity, but what can rule by all the people mean in cases of disagreement? If people disagree, as in these examples, they cannot all have all their own way. Even though all get what is most important to them – coordination – the question which coordinated solution is to be imposed on all, e.g. whether the group goes to the Indian or Chinese restaurant in this case, still raises issues of fairness to each person. In such
    99
    
    This assumes a one-off decision. If we have a series of meals together, it would be fair to alternate between Indian and Chinese. I also exclude the possibility of compromise, e.g. Italian. 100 This is the argument of Taurek (1977), which is considered in chapter 3.5.
    
    42 cases, the most reasonable solution seems to be equality: all should have, in some way, equal impact in decision-making or chances of being decisive (see the quotations in my introduction, sections 0.1-2). Democracy, as Dahl defines it, is a system of political equality and popular sovereignty101. The latter condition is necessary because a system where people have no power is still one where they are equal. Here, this is taken for granted, so the focus is simply on political equality, which I think is best defended if we conceive of decision-making as a distributive process, determining who gets their way over what. Whatever value democracy serves – for instance, liberty, power, pursuit of interests or self-development – is one that we assume all have interests in. If all have interests at stake in collective decisions, then it is generally supposed that all should have a say in them102. Thus, it is no surprise that democracy seemed to evolve, in ancient Greece, from the idea of isonomia (equality before the law)103. Moreover, while the spread of democracy has certainly not been a simple, teleological progression, equality has continued to figure prominently in calls for democracy – as in Rainborough’s remark that “the poorest he that is in England hath a life to live, as the greatest he”104 – and still occupies a central place in modern discussions of democracy. Ranney and Kendall, for instance, observe that: “One characteristic that most persons regard as essential to democracy is political equality. A familiar way of describing this trait is ‘one man, one vote,’ which we take to mean that in a democracy political power must be equally shared by all its citizens, and no man should have a larger share than any other man”105 While Dahl and Lindblom write that, in democracies:
    101 102
    
    Dahl (1956) pp.34, and 37ff, c.f. Christiano (1996) p.3, McGann (2006) pp.5, and 203. For the ‘all affected’ principle, see Whelan (1983) p.19, Goodin (2007) pp.50-55, and Arrhenius (2007) pp.12-4. Note, this does not assume all have equal interests at stake; merely that all equally have interests at stake. 103 Holland (2005) p.134. 104 Woodhouse (1938) p.53. 105 Ranney and Kendall (1956) p.16; c.f. Still (1981) p.376.
    
    43 “Control over governmental decisions is shared so that the preferences of no one citizen are weighted more heavily than the preferences of any other one citizen… In elections the vote of each member has about the same weight”106. While justifications for and interpretations of equality differ, it is generally assumed that we are all egalitarians now107, and this is certainly the case when it comes to political equality – almost everyone claims to be (correctly understood) a democrat108. Given this point in our development, I do not feel the need to defend the premises of democracy, popular sovereignty or political equality. Nothing here is intended as a complete argument for democracy, though this chapter has sought to ground it in finding a socially optimal pattern of coordination that respects each individual’s differing preferences equally. This thesis is concerned not with justifying political equality but its correct interpretation and institutional requirements. It is putting abstract principles like equality into practice that usually leads to disagreement. For example, does equal concern for each person mean that each person’s utility should count equally in some maximizing system? Or that each should be ensured equal welfare? Or equal opportunity for welfare, or equal resources, or simply equal liberty to pursue their own interests?109 Similarly, there are varying interpretations in the political context – for instance, does political equality mean equality only of votes or of all influence over decisions?110 Should representation be proportional or majoritarian?111 What does equality require of
    
    106 107
    
    Dahl and Lindblom (1976 [1953]) p.41, and p.277; c.f. Still (1981) p.375. For the so-called ‘egalitarian plateau’, see Dworkin (1977) pp.179-83, Kymlicka (2002 [1990]) pp.3-4, and Sen (1992) pp.12-16. 108 Hyland (1995) p.36, Woodruff (2005) p.6. 109 These possibilities are intended to roughly characterize the positions of classical utilitarians, welfare egalitarians, Arneson, Dworkin and libertarians, respectively. 110 Dworkin (2000) pp.191-8. 111 Hyland (1995) pp.94-100, McGann (2006) pp.35-59.
    
    44 electoral districts?112 Can it require weighted voting, to respect inequalities?113 And, the issue here addressed, how do we best treat all votes equally? (1.4) The Alleged Obviousness or Necessity of Majority-Rule Many have thought it obvious that if each vote is to count equally, then the majority must hold sway114. This move is clearly made by Robert Dahl; following the quotation from the previous section, Dahl and Lindblom go on to add: “To say that the votes of the greater number should not prevail is to say that political equality is impossible, or that it is undesirable, or both… [U]nless government policy responds to the preferences of the greater number, the preferences of some individuals (the lesser number) must be weighted more heavily than the preferences of some other individuals (the greater number)”115. Abraham Lincoln, whose characterization of democracy served as our starting point, also thought majority-rule a practical necessity, declaring: “Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left”116. Similar thoughts are often expressed, particularly in popular thinking117. Some have even gone so far as to define democracy in terms of majority rule, for example, Carritt says: “Democracy is government of the whole people by a majority and it may be carried out either for the whole people or merely for the majority”118. This is an illegitimate jump. Democracy should be defined in terms of political equality, which may turn out to require majority-rule (this appears to be Lincoln’s reasoning), but there may be other ways of treating everyone equally. While it seems natural to conclude that, if all are to count equally, then more people must somehow count for
    112 113
    
    Balinski and Young (1982), Still (1981). Brighouse and Fleurbaey (2006), Heyd and Segal (2006). 114 C.f. Waldron (1999) pp.129-30. 115 Dahl and Lindblom (1976 [1953]) p.44. 116 Lincoln (1991) p. 58 [‘First Inaugural Address’, 04/03/1861]; c.f. Holden (1988) pp.39-40. 117 Hyland (1995) pp.88-100, Berg (1965) p.140. 118 Carritt (1947) p.150.
    
    45 more119, it is a further and unwarranted step to conclude from this that the majority must get all their own way120. If we accept this inference, then it is not clear we can distinguish democracy from majority tyranny121. Perhaps one reason for thinking it ‘natural’, or even ‘necessary’, that the majority get their way is because of the greater physical force of greater numbers. It is plausible to imagine that majority-rule might have arisen out of need for peaceful conflict resolution. While Clausewitz famously said “war is nothing but a continuation of political intercourse”122, disagreements were resolved by physical conflict long before they were resolved by what we would regard as civilized politics, and the more likely truth is that politics (in the form of civilized debate and voting) is a continuation of war by other means123. Although it is somewhat fanciful, it is easy to imagine that generals of opposing sides were often aware who was better-placed to win the battle and, where the outcome was predictable, it made sense for the likely losers to defer without battle – to surrender without bloodshed, rather than fight to defeat or death124. Hobbes, for example, argued: “[I]f the Representative consist of many men, the voyce of the greater number, must be considered as the voyce of them all. For if the lesser number pronounce (for example) in the Affirmative, and the greater in the Negative, there will be Negatives more than enough to destroy the Affirmatives; and thereby the excesse of Negatives, standing uncontradicted, are the onely voyce the Representative hath”125 This interpretation was certainly endorsed by Henry Thoreau, who claimed:
    
    119 120
    
    Parfit (1978) p.301. We could, for example, believe in compromise – see, e.g., Hyland (1995) pp.96-8 and Lijphart (1977) pp.38-41. 121 De Tocqueville (1994 [1835]) pp.254-62 [Democracy in America I.15], Emerson (1998) p.1. 122 Von Clausewitz (1997 [1832]) pp.357 [On War VIII.vi.B]; c.f. pp.22-3 [I.i.24, 26]. 123 This point is also made by Sartori (1987) p.42. 124 Przeworski (1999) p.48 suggests voting is a proxy for war. Sartori (1965) p.335 and (1987) p.343 quotes the expression ‘it is better to count heads than to break them’, which also appears in Riker (1982) p.243. Ross (1952) pp.96-7 considers the suggestion that democracy is a peaceful means to resolve conflict, but points out there’s no need for all to agree to democracy to resolve conflict peacefully. 125 Hobbes (1985 [1651]) p.221 [original pp.82-3, ch.16].
    
    46 “[T]he practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest”126 This conjecture would also explain why the extent of the franchise was often somehow related to military service – for instance, Athenian democracy is often attributed to the need for manpower in their navy and, throughout history, the franchise was generally restricted to men, or even the rich (who were likely better-fed and -equipped), all of which could be justified by their military use127. Of course, the relationship between weight of numbers and military victory is only contingent – the larger army does not always win, especially if their opponents are better trained, organized, equipped or positioned. The problem, however, is not that this reasoning does not always favour the majority, for we can concede that other things being equal a larger army is more likely to win. Rather, the objection to this line of argument is that it does not offer much of a normative justification at all. If majority-rule originated simply as a proxy for ‘who is most likely to win, if it comes to fighting’ then it seems no more than an appeal to ‘might makes right’, which violates Hume’s
    126 127
    
    Thoreau (1993 [1849]) p.2. The link between Athenian naval power and democracy is drawn in Ober and Hedrick (eds.) (1996) p.9, Holland (2005) pp.166 and 217, and Woodruff (2005) p.25. Those who fought, even slaves, were often granted citizenship rights. See Aristophanes (1919) pp.104-5, especially note to line 694, and Aristotle (1959) p.282 [Ath Pol XIV, ch.40] and (1992) p.308 [Pol V.4 (1304a21-4)]. The association of political rights and military service in England dates at least to the civil war. Ramsborough’s demands in the Putney debates, for instance, seemed connected not only to the fact that each was subject to the laws but that men had fought for them. Woodhouse (1938) pp.56, and 61. C.f. Crawford (2001) p.197: “The category ‘citizens’ sometimes excluded women because it could refer to men who bore arms for the defence of their country”. In 1816, William Cobbett called for the franchise to be extended to all who pay tax, (1944) pp.214-5 (more precisely, to those who pay direct taxation, but it is clear this limit is a matter of practicality, not principle), but he connected this to military service, saying, “As it is the labour of those who toil which makes a country abound in resources, so it is the same class of men, who must, by their arms, secure its safety and uphold its fame”, p.207. He approved Samuel Bamford’s proposal to use militia lists for voting registers, Bamford (1967) p.19. Again, practicality may have figured, but Colley’s account, (1992) p.318, explicitly connects the reasoning to fighting; “if all adult men were worthy to fight for Great Britain, then surely they had the right to take part in its politics as well?” I thank Robert Poole for leading me to these references. Even the relatively recent extension of the franchise to women could be attributed to a recognition of their potential role, either in supplying the next generation of soldiers or – in modern ‘total war’ – taking the men’s places in factories.
    
    47 dictum that we cannot derive evaluative conclusions from purely factual premises128. That one side would likely win is no reason to conclude that they should129, just as we do not think it legitimate of me to impose my preference for an Indian restaurant on you because I am stronger and would win in a fight. One possible solution would be to recast the idea of ‘force’ in terms that don’t refer to violence, as when one side wins due to the force of their argument. Locke, for instance, appeals to the natural laws of physics, claiming that: “[W]hen any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for… it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body… [Thus] the act of the majority passes for the act of the whole, and of course determines, as having, by the law and nature of reason, the power of the whole”130 This argument suffers multiple flaws. Firstly, if it means that majority-rule is a natural necessity, then there should be no need to argue for it – but clearly a body of people need not always move in the way suggested by the majority. If, however, it is proposed that we should follow the majority, because this is how physical bodies act, then it is again guilty of deriving normative conclusions from empirical premises, and arguably irrelevant ones at that. Moreover, the crucial analogy is flawed; firstly because it is not obvious that the majority-will is the strongest force – an intense minority could be stronger, and there is no reason to associate mere numbers with
    
    128 129
    
    Hume (1978 [1739-40]) p.469 [Treatise 3.1.1]. Rawls (1999 [1971]) p.116: “it is to avoid the appeal to force and cunning that the principles of right and justice are accepted. Thus I assume that to each according to his threat advantage is not a conception of justice”. 130 Locke (1980 [1689]) p.52 [Second Treatise §96]. Note he does not here say they consent to majority-rule; he says they consent to form one society, which makes majority-rule necessary. Waldron (1999) pp.130-50 dubs this the ‘physics of consent’; c.f. Risse (2004) p.47.
    
    48 greater force131 – and, secondly, because the ‘physics’ of the argument is wrong in any case132. Bodies do not move only under the influence of the greatest force exerted on them, but their final motion vector is the result of all forces; if there is a great force pushing left and a smaller one pushing up, the body will move left, but also up. If the natural motion of physical bodies under forces supports anything, it is more likely some form of proportionality. Certainly it does not seem that majority-rule can be justified on grounds of physical necessity.
    
    (1.5) Contract and Consent Even if there is nothing necessary about majority-rule, as Locke assumed, it may be that parties would agree to such. Decision-rules are not unalterable natural necessities, but tools we adopt for specific purposes (a point that becomes important in chapter 7), so it seems that rule chosen should itself be a matter of agreement. The idea of social contract theory is to model people as free and equal. If we want to design social institutions that respect people as such, then one way to do this is to ask what institutions they would agree to. This model can be applied to either distributive questions or the democratic organization of society. So, if we want a decision procedure that will treat all equally, one way of reaching such will be to ask people – who do not know who they will be in the final society – what rules they would accept133. The application of contract theory to the design of democratic decision making procedures has not been entirely neglected. Madison, in the discussions founding the
    131
    
    Risse (2004) p.49 points out ‘no more has been said’ when the same argument is given by more people. 132 The latter point is made by Risse (2004) pp.55-7. 133 Note that, though I term this ‘contractualist’, I am not assuming that what is agreed to constitutes fairness. The contract here legitimizes certain decision rules, and it is perfectly coherent for people to reject certain rules because they are unfair.
    
    49 United States, uses what Elster describes as a veil-of-ignorance argument, defending the Senate on the basis of what “A people, deliberating in a temperate moment, and with the experience of other nations before them, on the plan of Govt” would choose134. Contracts played an important part in founding government for Hobbes, Locke and Rousseau, and the tradition has been extended by modern thinkers such as Rawls135, Scanlon136 and Gauthier137. Wolff points out that many have supposed all would agree to majority-rule at the stage of the original contract – though he insists that this is not legitimating, simply consenting to the surrender of their autonomy138. The next section addresses whether those who contract to form a society would necessarily consent to majority-rule. While it seems there are powerful reasons to agree to some shared decision-rule, since we have seen that majority-rule is not naturally privileged, there seems no a priori reason why it should be agreed to rather than some other procedure, such as a lottery139. Nonetheless, the contract is a useful device for thinking about constitutional design, and such reasoning will be appealed to later, particularly in chapters 3 and 7. Of course, any choice will involve a loss, for while each person’s ideal decision-rule may be their personal dictatorship, equality requires compromise with others. Thus, we may all have to accept what we do not want sometimes in return for getting what we do want on other occasions. If coordination is more important than the particular pattern of coordination, however, then this compromise may allow everyone to get more of what they truly want (see 1.2 above).
    
    134 135
    
    Elster (1993) pp.197-8; for the original see Farrand (1966 [1911]) pp.421-2 [26th June 1787]. Rawls (1999 [1971]) esp. p.10. 136 Scanlon (1998) e.g. pp.5-6. 137 Gauthier (1986) e.g. p.10. 138 Wolff (1976) p.41. 139 Simmons (1993) p.94.
    
    50 (1.6) Contracting to Majority-Rule If we accept the idea that contracts illustrate what is fair, the crucial question is whether people would accept – or contract to – majority-rule; but this is a different claim from the one (refuted in section 1.4, above) that majority-rule is simply the ‘obvious’ or ‘natural’ solution. The two are often blended together, however, perhaps because it is assumed people must (rationally) consent to that which is necessary. Hobbes, for instance, said: “[H]e that dissented must now consent with the rest; that is, be contented to avow all the actions he shall do, or else be justly destroyed by the rest. For if he voluntarily entered into the Congregation of them that were assembled, he sufficiently declared thereby his will (and therefore tacitely covenanted) to stand to what the major part should ordayne”140 There is, so far as I can see, no argument that those consenting to join a society thereby tacitly covenant to accept majority-rule. One possibility is that Hobbes was persuaded by the thought that the greater number are likely more powerful (see 1.4 above), though this may conflict with his preference for monarchy rather than democracy141. Similarly, Locke adds to his ‘physics’ the idea that we would consent to our society behaving in this way. He adds that society should follow “the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so everyone is bound by that consent to be concluded by the majority”142. The idea is simply that we all want the community to act as one, so we must thereby commit ourselves to acting in accordance with the majority will. He goes on, in the next three sections, to say:
    140 141
    
    Hobbes (1985 [1651]) p.231 [original p.90, ch.18] [underlining added]. Hobbes (1985 [1651]) pp.241-8 [original pp.95-99, ch.19]. 142 Locke (1980 [1689]) p.52 [ch.8,§96] [underlining added].
    
    51 “[E]very man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it”143 “For if the consent of the majority shall not, in reason, be received as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: but such a consent is next to impossible”144 and “Whosoever therefore out of a state of nature unite into a community, must be understood to give up all the power, necessary to the end for which they unite into society, to the majority of the community, unless they expresly agreed in any number greater than the majority”145 Sidgwick also assumes that it is reasonable to consent to majority-rule, pointing out that: “If the majority of a nation are able to modify, in an orderly and regular way, their laws and the action of their government, a minority desirous of change will, ordinarily, be only tempted to resort to physical force when it is hopeless of becoming a majority”146 Tellingly, however, the last two quotations from Locke actually make reference to other possibilities. Like Lincoln, he rejects unanimity as impossible, but it does not actually follow that we have to accept a simple majority, for he allows that we could expressly adopt some other (super-majority) rule. We can agree to act as one, but still choose from many different possible decision-rules, so consenting to act as one only binds us to act on the majority will if either i) that is the only way of deciding (which was rejected in section 1.4) or ii) if that is in fact how we do consent for the whole to act. Thus, nothing in these arguments from consent requires, or even favours, majority-rule. We cannot simply assume people will agree to majority-rule, unless they do so because they already think it is a fair way of resolving their conflicts. As A. John Simmons puts it:
    
    143 144
    
    Locke (1980 [1689]) p.52 [ch.8,§97] [underlining added]. Locke (1980 [1689]) p.53 [ch.8,§98]. 145 Locke (1980 [1689]) p.53 [ch.8,§99] [underlining added]. 146 Sidgwick (1908 [1891]) p.616; also quoted in Kuflik (1977) p.327, fn.6.
    
    52 “Only if majority rule were obviously fairer and more authoritative than lottery, weighted lottery, votes adjusted for intensity, plural votes for the qualified, and the like, would we be obliged to interpret a commitment to political membership as a commitment to majority rule”147 The aim of this thesis is to defend one of these alternatives – viz., the weighted lottery or, as it is called here, lottery-voting – rather than majority-rule. This is not to say it is never rational to choose majority-rule, but only that, at least in some choice contexts, it could be at least as rational for a group of fair-minded, disinterested individuals to adopt lottery-voting to determine their collective decisions. The next two chapters explore two reasons that people might have, in an original contract position, to agree to majority-rule. Chapter 2 addresses claims that majority-rule produces better outcomes, in some vaguely utilitarian fashion, and that people will accept it for this reason. Such outcome-based reasons to accept majority-rule are rejected, because these outcomes are not necessarily better overall and – even if they are – they need not be better for each individual. We saw, above, that democracy offers a way of resolving conflict between socially optimal patterns of coordination, which suggests that democratic procedures must be justified in terms of fairness. Chapter 3 takes up the claim that majority-rule is a fair way of adjudicating between competing claims, arguing that, while majority-rule may be fair in certain cases (namely, where the composition of the majority is effectively random), it is not fair if there is a permanent majority, and what equality really requires is a form of proportionality.
    
    (1.7) Proportionality While Locke assumes that the majority speak and decide for the whole, others have thought it is unjust to exclude the minority. Sartori, for instance, stresses that
    147
    
    Simmons (1993) p.94.
    
    53 “the people consist, overall, of the majority plus the minority” so we cannot allow absolute, unrestrained majority-rule148. Democracy is ideally about the rule of the whole demos, not simply a majority of them. It is often objected that if the minority got their way, each of them would have to be counted for more than one. For instance, Dahl and Lindblom claim “unless government policy responds to the preferences of the greater number, the preferences of some individuals (the lesser number) must be weighted more heavily than the preferences of some other individuals (the greater number)”149. However, this seems to neglect the fact that, if the majority get all their own way, then they also seem to be counted for more than one. Consider a 60/40 split in a typical ‘winner takes all’ system: Fig. 1.3 Proportionality % votes Majority Minority 60 40 outcome 100 0
    
    The majority get 60% of the vote, but 100% of the outcome150. This means that each vote seems to count not for 1% but 1.67%. Also, it is not only that the majority count for more than the minority – as it might be if the outcome was split, say, 80/20 – but that the minority seem not to count at all – they get nothing for their 40% of the votes. It certainly does not seem that each vote is post facto being treated equally. Of course, post facto equality may be impossible in cases of disagreement, since some people must get their way151. If the outcome is necessarily zero-sum and winner takes all, then it may be least objectionable to let the majority have all their way, for the
    148 149
    
    Sartori (1987) p.32. Dahl and Lindblom (1976 [1953]) p.44. 150 Of course, 100% of the outcome may not be all their own way – they may, for example, be voting between proposals that are already compromises, e.g. 70/30 or 30/70. 151 Lively (1975) pp.17, and 24 notes only unanimity ensures complete retrospective equality.
    
    54 alternative – satisfying the minority – is a greater deviation from equality (in this case, each 1% of the vote would count for 2.5% of the outcome). My concern here is not with retrospectively equal outcomes but ensuring that the procedure really does give all a fair chance – and thus with ensuring that no one faces near-certain defeat. The only defence of majority-rule is the claim that each person had an equal chance of being in the majority, so it was not predictable in advance whose vote was to be significant. Chapter 3 will take up such themes, but for now note that the equality of all is not obviously served by majority-rule. As Guinier puts it: “The proportionality principle delivers what majority rule proponents assume but do not produce: decisional rules that promote reciprocity and accountability without straying too far from the efficiency and stability norms… Proportionality seeks a reason for implementing a decision that legitimates the decision in the eyes of all voters, even those who may lose. It asks whether the process provides all voters an equal opportunity to be part of the winning coalition”152 If we want each vote to have the same weight, then our aim seems better-served by some kind of proportional compromise, e.g.: Fig. 1.4 Compromise % votes Majority Minority 60 40 outcome 60 40
    
    I think that most issues are actually amenable to some sort of compromise. To take one example where this is not obvious, while there is apparently a binary choice between allowing and not allowing abortion, there are various ways in which this can be made more or less palatable to either side – for example, rather than making abortion freely available on demand, we could insist that it be performed in the first 20 weeks of pregnancy and require approval of two doctors, or, instead of complete
    152
    
    Guinier (1994) p.92.
    
    55 prohibition, we could allow it only for cases of rape and medical necessity. Similarly, the decision whether or not to go to war is an apparent binary, but there are various possibilities such as ‘hot war’, ‘cold war’, simply building up defensive forces, negotiating treaties with other parties, etc. The problem is not generally that fair compromises do not exist. Rather, they require a degree of judgement or sensitivity. A compromise that gives everyone some satisfaction cannot normally be achieved like cutting a cake – for example, allowing every other request for an abortion would seem outrageous. I shall argue, in section 3.13, that compromises are not always ‘mechanically’ possible or desirable on any given issue – even if we can ‘split the difference’ it may not please anyone. There I shall argue that we should seek compromise not over individual decisions, but over either (if we can) the whole series of political decisions or, alternatively, the procedure that decides them – that is, we should ensure that even minorities sometimes get their way, so that no one is permanently excluded. The procedural solution leads to proportionality not of outcomes but of chances. Whether or not this later argument stands, the conclusion so far is that winner takes all majoritarianism does not respect each equally. If our aim is to include all equally, then we cannot complacently assume that majority-rule will achieve this.
    
    (1.8) False Dichotomies and Neglected Options I believe the complacent, almost naïve, acceptance of majority-rule comes from a failure to consider all available options153. The possibility of proportionalitypreserving solutions is often neglected. It is regularly assumed that the choice is simply between majority-rule and minority-rule, in which case the former looks
    153
    
    C.f. Guinier (1994) p.2.
    
    56 obviously democratic, while the latter appears only to preserve oligarchy. To return to the example from the previous section, if one side are to get everything, then it is obviously closer to proportionality to give the whole outcome (100%) to the 60% rather than the 40% of voters. The fault seems to originate in a tendency to neglect certain possibilities, including lotteries or other proportional arrangements, and simply contrast majorityand minority-rule as if they were the only alternatives. This dichotomy can be traced back as far as Aristotle’s opposition between the rule of the many and rule of the few154 – though in fact he recognized the intermediate possibility of mixed constitutions. More recently, this has been forgotten and, since calls for democracy often began as protests against elite privilege, it has been assumed that the many must rule. This confuses two separate issues: i) the boundary of the demos and ii) the decision rule used within that demos. Democracy may well require the ‘rule of the many’, understood as a wide franchise, but it should not be identified with majorityrule amongst those decision-makers. Firstly, the majoritarian decision-rule is not unique to democracy but may be employed by an oligarchy155. Secondly, there may be other ways in which the demos can make decisions respecting all equally – as shall be argued below. Nonetheless, this confusion has continued to exert a profound influence on thinking about democracy, particularly in popular discourse. Recall Lincoln’s remark, quoted in section 1.4: “Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left”156. Even granting the premise that unanimity, even after deliberation, is impossible, two issues have been
    154 155
    
    Aristotle (1988) p.61 [Pol III.7 (1279a27-8)] Aristotle (1988) pp.85, and 94 [Pol IV.4 (1290a30-3), IV.8 (1294a12-4)], Lively (1975) p.13. 156 Lincoln (1991) p. 58 [‘First Inaugural Address’, 04/03/1861].
    
    57 confused here. We can ask: i) should rule be the permanent possession of one group or shift between groups, and ii) if one group rules permanently, should it be a majority or a minority. If one group is to have permanent rule, the tyranny of the majority seems preferable to that of a minority, but we can question the initial supposition that any group – even a majority – should be permanently in charge. Permanent government in the hands of any one group – majority or minority – seems to be a licence for tyranny and undemocratic insofar as it violates equality understood as proportionality157. Lincoln is clear that he actually favours shifting rule158, and this seems obviously desirable. Hence there have been long traditions emphasising, for example, rotation in political office159. Once we realize that we want rotation, however, rather than permanent rule of any given group, it is less obvious that majority-rule always delivers. Defences of majority-rule often emphasize that it is not some fixed group – ‘the majority’ – who exercise permanent rule160. Rather, the case for majority-rule is strongest when that majority is a loose alliance, made up of shifting individuals or groups, such that each member of society is sometimes in the majority and sometimes out of it – so while no-one always gets their way, everyone sometimes gets their way. This makes certain empirical assumptions about the nature of society, however, which need not always hold. Aristotle assumed democracy would mean the many poor ruling over the rich few, and in modern societies divisions may form along other lines, such as race, religion, geography, etc161. This is true not only at a national level,
    157 158
    
    Madison regarded the majority as simply another faction, van Mill (2006) p.142. Lincoln (1991) p. 58 [‘First Inaugural Address’, 04/03/1861]: “A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments” [emphasis added]. 159 E.g. Aristotle (1988) p.144 [Pol VI.2 (1317b1-4, and 23-4)], Carritt (1947) p.152, Berg (1965) pp.150-4. 160 E.g. Sartori (1987) p.33, and Downs (1985 [1957]) p.57. C.f. criticisms by Guinier (1994) pp.4, 9, 17 and 77. 161 Guinier (1994) pp.9-16; c.f. Carter (1994) p.xv.
    
    58 but even within small groups of the sort discussed here – for instance, chapter 4.6-7 uses two examples drawn from student life, and in each case there could be a clear distinction, e.g. between doctoral and masters students, or those that live to the east and west of town (these divisions are not, of course, absolutely ‘permanent’ or unchangeable, but sufficient to lead to a conflict of interests over a whole series of decisions). If we assume that there is no significant movement between majority and minority, then it is no longer clear that majority-rule – to the permanent exclusion of some minorities – is equal or democratic162. Moreover, even if society is broken down into, say, ten equal groups, any eight of which could unite into a changeable majority, that is no consolation to the other two who might still be permanently excluded163. While some theorists have still argued for majority-rule, on the grounds that at least only a minority will have their rights invaded164, it is unclear that the ‘tyranny of the majority’ is much better than the tyranny of a single individual, simply because more people are tyrants. After all, a single tyrant can hardly be blind to the plight of his people, and knows he will be deeply unpopular – and hence at risk – if he impoverishes them too much. Most people can, however, support a lavish prince, since the costs of one person’s extravagant life are spread over the very many poor. When it is a majority imposing on a minority, however, the total costs of giving all the majority a good life are much higher, and they are imposed on a much smaller segment of the population. Those in the minority may become practically ‘invisible’ to the majority, who see only their fellows and, even if the plight of the minority is
    
    162 163
    
    Sartori (1987) pp.32-4, Lively (1975) pp.25-7, Guinier (1994) p.78. Note, therefore, that the problem arises whenever there is a permanently excluded minority, even if the winners change. For criticisms of Dahl, along these lines, see Lively (1975) pp.20-4 and Hyland (1995) pp.89-90. 164 Van Mill (2006) p.141: “These arguments can be used to support majority rule; if sovereignty poses a threat to rights, it is better that it rests with the majority because only a minority of people can possibly have their rights invaded… instead of trying to control power, or divide it up to make it safe, the best solution is simply to give it back to the people and trust them”.
    
    59 noticed, each individual member of the majority is likely to feel very little personal responsibility for what the majority as a whole does. Suppose we know, when designing our democratic institutions, that the society in question will involve a permanent division between a 70% ‘red’ majority and a 30% ‘blue’ minority, and these group identifications will affect the way people vote on a significant range of issues165. If we were committed to majority-rule, then we would not find this problematic, but simply accept that the blues would never get their way. If we were in an ‘Original Position’, not knowing whether we would be a blue or a red, however, it is not clear that we could accept such a possibility166. At least, if Rawls is right that we would not be willing to gamble, and so would reject utilitarianism, then it seems that for the same reason we would reject such ‘loaded’ majority-rule and insist on a principle that would guarantee us some say, even if we ended up in the blue minority167. Possible solutions would be those that ensure compromise on each issue – as may result from a unanimity rule168 or consociational elite bargaining169 – or artificially induce some rotation in office, as produced by lottery-voting. This is not, of course, to prove that one of these methods would be chosen all things considered, but lottery-voting is not ruled out. People may be willing to accept a lottery, even if it lowers their chances of getting their way, to ensure they are never excluded a priori simply in virtue of being in a minority170. The
    
    This case is discussed again in chapter 4.9, below. I do not mean to imply democratic procedures are to be chosen from Rawls’ Original Position. In fact, the choice between them can be made only with some knowledge of society – as assumed here – and so is a matter for the ‘constitutional convention’, Rawls (1999 [1971]) pp.172-4. My point is that lottery-voting remains an open possibility. 167 Harsanyi (1955) p.316 reasons to utilitarian conclusions from a similar original position, but he assumes we thereby maximize our expected utility, because we have equal chances of being anywhere – or anyone – in society. Hurley (2004) p.117ff. criticizes the idea that the natural lottery should be thought of as a proper lottery, because there is no identity before the ‘randomness’. I return to these themes in chapter 3.3 and 3.12. 168 Buchanan and Tullock (1962) pp.81-92. 169 Lijphart (1977) pp.49-54. 170 C.f. Timmermann (2004) p.112, quoted in chapter 3.14, and Guinier (1994) p.1.
    166
    
    165
    
    60 reason that such possibilities have been neglected is, in part, I conjecture, that people have confused the fact that ‘the many’ must be the ones making the decision with the decision-rule that says the many are to be decisive in cases of disagreement between decision-makers. Now that we are aware of alternative possibilities, the next two chapters will examine justifications of majority-rule; with chapter 3 developing an alternative account of fairness that leads, in chapter 4, to me developing lottery-voting as an alternative to majority-rule.
    
    (1.9) Conclusion This chapter has shown how the need for democratic decision-making arises out of the desire for coordination between free and equal persons in conditions of pluralism. I have suggested that a contractualist approach may have considerable potential for framing decision rules – we should regard as fair those rules that all would agree to, for example, if reasonably motivated or placed behind a veil of ignorance and so unaware of their eventual position in society171. The idea of a social contract to form society is not, of course, new, but a number of historical theorists have been guilty of simply assuming majority-rule will be agreed to or a consequence of the contract, rather than showing that it would in fact be agreed. One possible reason for this failing was diagnosed, namely a confusion between the question ‘who makes decisions?’ (where democracy does indeed call for the enfranchisement of the majority) and the secondary question ‘how are decisions to be made?’ (which need not be by majority). This confusion has, regrettably, led to an over-simplistic contrast between majority- and minority-rule; a false dichotomy that neglects other possible
    171
    
    Note that the contract is used to reach democratic procedures. I do not assume a contract specifies justice, so it remains open for me to say that contractors agree to certain democratic procedures because they are just.
    
    61 democratic procedures, such as lottery-voting, the recognition of which leaves us needing reasons to accept majority-rule. The next chapter turns to broadly utilitarian arguments, which purport to justify the choice of majority-rule on the grounds that it produces better outcomes. I argue that this is not so, because there is no necessary connection between majority-rule and better outcomes. Moreover, even if majority-rule does maximize utility, this is not an adequate understanding of treating people equally, since it need not distribute this satisfaction fairly. Chapter 3 therefore takes up outcome-independent arguments of fairness, considering what procedures contractors would agree to for resolving competing claims. I will argue that, if we think of decision rules that would be agreed to by free and equal persons, then majority-rule will not necessarily be agreed to; depending on the social situation, contractors will have reason to at least consider other possibilities that are neglected by the contrast between majority- and minorityrule, including lottery-voting.
    
    62
    
    2 Maximizing Arguments for Majority Rule “[D]emocracy is not founded in a concern for maximizing social utility; instead it is based on the ideal of giving citizens equal control over their social world”172 “[T]he use of the majority principle cannot bring about any significant approximation to ideally egalitarian compromises”173 (2.1) Introduction The previous chapter argued that we should not simply accept majority rule as the ‘natural’ or ‘inevitable’ decision procedure. Maybe if democracy did evolve as a means of peaceful conflict resolution between otherwise warring factions, it was natural for the numerically superior army to be awarded victory, but once we have moved beyond such a primitive state we no longer believe that might makes right, or even legitimates – as Rawls observes, “it is to avoid the appeal to force and cunning that the principles of right and justice are accepted. Thus I assume that to each according to his threat advantage is not a conception of justice”174. We want principles that all can accept on the basis of reasons, not simply a modus vivendi adopted out of pragmatic necessity175. After all, in the modern world a well-trained and -equipped elite force would often be capable of defeating a much more numerous enemy army, but we do not feel the former are entitled to over-rule the latter in a vote simply because they could beat them in a fight. If we are to accept majority rule, it must be because it is something all could rationally agree to in our hypothetical contract position.
    
    172 173
    
    Christiano (1996) p.96 [not emphasized in the original]. Berg (1965) p.147 [not emphasized in the original]. 174 Rawls (1999 [1971]) p.116. 175 C.f. Guinier (1994) p.1, and Mouffe (2000) p.94.
    
    63 The present chapter takes up one strand of argument for majority-rule: broadly consequentialist claims that such a procedure maximizes some good176. Two versions of such are considered, perfect and imperfect procedural views177. The former assumes that, if everyone votes according to their interests, then majority-rule will automatically bring about the greatest happiness of the greatest number. This argument is rejected because, even if this ideal is a worthy one, votes cannot guarantee utilitarian outcomes. The imperfect procedural view, in contrast, takes the majority verdict as the most reliable indicator of ideal outcomes more broadly construed (this is generally known as an epistemic conception of democracy). This has some advantages, for instance it can accommodate impersonal ideals such as justice, but it is unlikely to succeed because of the epistemic and moral demands it places on voters. More fundamentally, I suggest that the argument that voting conduces to an independently-specified ideal outcome is undermined by indeterminacy over that ideal. If one outcome is better for me and another better for you, then we may have no way of saying that either is better overall. Moreover, wellknown problems of vote aggregation threaten the meaningfulness of any supposed majority verdict. These considerations led Riker to reject what he called ‘populism’ in favour of a more modest ‘liberal’ conception of democracy, the main virtue of which was removing potential tyrants (almost randomly) from office178. What we need is a different way of thinking about democracy. If there is no such thing as the ‘popular will’, then we should let each person vote for their preferred outcome and employ a fair procedure to decide between any conflicting interests. This may be termed the
    176
    
    I say broadly utilitarian because I am not committed to any particular conception of well-being (e.g. mental state or desire-satisfaction), but I stop short of consequentialism, because at least at first I restrict consideration to personal good – see sections 2.6-7 for a relaxation of this assumption. 177 These seem to correspond to what Waldron (1990) calls ‘Benthamite’ and ‘Rousseauian’ views. Although these labels are intended to describe a familiar interpretation of said authors, I do not believe they accurately portray their views. Perfect and imperfect procedures are defined by Rawls. 178 Riker (1982) pp.242-6.
    
    64 ‘pure procedural’ conception of democracy, which is developed further in the next chapter179.
    
    (2.2) Procedural Justice Rawls distinguishes three types of procedural justice: perfect, imperfect and pure180. In fact, this is an oversimplification, neglecting an ambiguity between two forms of imperfect procedure181. To briefly state these four possibilities: Perfect: We know the independently just outcome and have an infallible means of reaching it. Imperfect (a): We know the independently just outcome, e.g. equal shares, but do not have a sure way of reaching it. Imperfect (b): There is an independently just outcome, but we do not know what it is and the procedure does not guarantee reaching it182. Pure: There is no independently just outcome, only what results from the procedure. Rawls uses a cake-cutting example to illustrate a perfect procedure, assuming firstly that equal slices are independently just and secondly that a ‘you cut, I pick’ rule will achieve this. In fact, both points are disputable. Even if equal slices are just, such a rule is not guaranteed to produce equality as the cutter may misjudge, so it is – at best – imperfect. If you cut the cake 55/45, then I can pick the bigger piece. Moreover, one could argue that this is just because it follows from the procedure,
    179
    
    Although I was already developing such a line of argument, I have been influenced here by McGann (2006). 180 Rawls (1999 [1971]) pp.74-5. 181 I owe this observation to Magnus Jedenheim. Some of the following also draws on remarks by Pavlos Eleftheriadis. 182 Note that it could be claimed we do know what the just outcome is in the abstract, e.g. in a jury trial we know the just outcome is to punish the guilty, it is simply that we do not know who is guilty. The line between these two forms of imperfect procedure is not clear-cut.
    
    65 which suggests that this cake-cutting may be better understood as a pure procedure. This interpretation could be strengthened if we assume the cake is not homogenous but, for example, has a cherry on the top. In this case, you may deliberately include the cherry on the smaller piece, such that you judge the two slices (55% or 45%+cherry) equal, but I need not place the same value on the cherry. Alternatively, if you are not so hungry, you may deliberately cut the cake unevenly, expecting me to take the larger slice. Since ‘you cut, I pick’ is intuitively a fair procedure, whichever outcome eventuates can be regarded as just, regardless of whether or not it tends to independently specified equality and, in any case, an independently specified standard of equality cannot be guaranteed by such an inherently fallible procedure. If we want a better illustration of a perfect procedure, we could appeal to something like measurement to ensure that two shares were equal. Suppose, for example, that we were dividing a pile of beans between us. One way to reach an equal outcome, assuming an even number, is to take beans alternately (one for me, one for you, one for me, etc) until we had split the pile half and half. Assuming that equal shares is an independently just outcome, then this is a perfect procedure. Rawls’ example of an imperfect procedure is a jury trial, which illustrates the second type of imperfect procedure I have identified. In a trial, there is a guilty person, but we do not know who it is, and the trial is supposed to be most conducive to identifying this person. The first type of imperfect procedure, however, is one where we know the just outcome, e.g. equal shares, but do not have an infallible way of reaching it – for instance, when we split the cake only roughly in half or perhaps if we were to divide a large number of goods between us by tossing a coin for each one. One thing to notice about imperfect procedures, of either sort, is that they can be more or less ‘perfect’ or reliable as means to reach the outcome. For instance, one
    
    66 way of trying to find the guilty party would be to randomly select a name from the phonebook. Assuming the guilty person is in the book, this has some slight chance of reaching the right answer, but obviously a jury trial is better because it is more likely to do so. Where there are independently just standards, the ‘you cut, I pick’ rule is at the other extreme, being an ‘almost perfect’ way of reaching equal outcomes, assuming this is what both parties want and that they are competent cutters/choosers. As such, the difference between perfect and imperfect procedures is not really one of kind but degree. A procedure with a 1% chance of reaching the just outcome is imperfect, as is one with a 99% chance of doing so, while one with a 100% chance is perfect. Pure procedural justice is different in kind. In cases of pure procedural justice, there is no just outcome independently of the procedure. Rawls illustrates such cases with the example of fair bets – if we agree to stake £5 on a horse race, then justice says nothing about which of us should have the money independently of the outcome of that race. Note, therefore, that this is a historical notion of justice, in that it relies essentially on the procedure actually being followed. While procedures may have independent value, when there is an independently just outcome, we may be tempted to bypass the procedure if we can better realize substantively just outcomes. For instance, we would probably give up the ‘you cut, I pick’ rule if some external authority could better cut the cake in half. Where there is no independently just outcome, however, we cannot bypass the procedure. If the horses do not race, for instance, there is no justification for an external authority to transfer my £5 to you or vice versa.
    
    67 (2.3) Perfect Procedural Conceptions of Democracy Utilitarians assume that there is an independently specifiable ideal for government to aim at. As Bentham puts it, in the section of his Constitutional Code titled ‘Ends Aimed At’: “I recognise, as the all-comprehensive, and only right and proper end of Government, the greatest happiness of the greatest number of the members of the community: of all without exception, in so far as possible: of the greatest number, on every occasion on which the nature of the case renders it impossible by rendering it matter of necessity, to make sacrifice of a portion of the happiness of a few, to the greater happiness of the rest”183 Both utilitarianism and democracy aim to take equal account of each person’s interests – as Bentham also said, “every individual in the country tells for one; no individual for more than one”184 – so it is no coincidence that there are many parallels between them; for instance individual rights are often portrayed as a check on both utilitarianism and majority-rule185, defending individuals against majorities. Nagel also draws this connection, observing that, “The moral equality of utilitarianism is a kind of majority rule: each person’s interests count once, but some may be outweighed by others… Persons are equal in the sense that each of them is given a ‘vote’ weighted in proportion to the magnitude of his interests… the basic idea is majoritarian because each individual is accorded the same (variable) weight and the outcome is determined by the largest total”186 If this is our goal, then majority-rule seems to offer a potentially perfect way of reaching it. Suppose the contested decision represents a conflict of interests: those who get their way can be represented as having a utility of +1 while those who lose out have -1. Imagine that five people vote for policy X and three people for policy Y.
    
    183 184
    
    Bentham (1983 [1822-32]) p.136 [Const Code Ch.VII.2] [underlining added]. Bentham (1843 [1827]) p.334. Mis-quoted by Mill (1998 [1861]a) p.199 as “everybody to count for one, nobody for more than one”. 185 E.g. Waldron (1990) passim, Dworkin (1977) pp.90-6, Elster (1993) pp.178-9, Nagel (1979) pp.113-4, Freeden (1991) pp.83-100. 186 Nagel (1979) p.112. I return to this weighted voting in section 2.5, below.
    
    68 If we choose policy X then total utility will be 1+1+1+1+1+(-1)+(-1)+(-1)=2, while if we choose policy Y then it will be 1+1+1+(-1)+(-1)+(-1)+(-1)+(-1)=-2. If we can satisfy either five or three people, many find it obvious ceteris paribus that it is better to satisfy the larger number. It is often said that utilitarians treat the community as a single, organic ‘super-entity’, ignoring the fact that gains to one person do not compensate losses to another187. If I offered you the choice between £5 and £3, it would be rational for you to maximize your pay-offs, choosing £5, but utilitarians extend this rationale to society as a whole, assuming that social benefits should be maximized while ignoring distributive concerns. Leaving aside, for now, the criticism that this ignores the separateness of persons, the issue is whether majoritarian voting procedures really will realize the greatest social benefit. The aim is for the voting procedure to be a simple, mechanical measurement of preferences, and so to arrive automatically at ‘the greatest good of the greatest number’. If we assume that each person successfully votes for what is good for them, then the option with most votes is by definition good for more people than any other. While the optimal outcome could in principle be identified independently of the vote, voting is supposed to provide an infallible means to achieve it via the ‘invisible hand’ of majority-rule. There are, however, a number of problems with trying to identify optimal outcomes in this way. I shall begin by pointing out that utilitarians cannot ignore intensity of preferences, so must acknowledge that the greatest good can come apart from the greatest number of votes, and then argue that this end cannot be guaranteed by any majoritarian-style voting procedure.
    
    187
    
    E.g. Gauthier (1962) pp.125-7, Rawls (1999 [1971]) pp.21-7, Parfit (1984) pp.329-47.
    
    69 (2.4) Problems with Utilitarian Outcomes Even if all accept the greatest happiness as the goal to be achieved, putting aside any other problems such as justice, one difficulty is that this need not go hand in hand with the satisfaction of the greatest number. The above example, in section 2.3, assumed that what was at stake for each individual was equal, and thus satisfying the greatest number was the means to maximizing overall happiness. Maybe this is what Bentham meant by his above remark that each is to count for one, but if so it seems an implausible doctrine about interpersonal comparisons: to hold that any benefit for individual A is equal to any benefit for individual B. While we may not have an exact scale on which to make interpersonal comparisons – we cannot always tell, for instance, whether Janet or John would more enjoy a film – we often feel we can make rough comparisons, for example the loss of John’s arm is a bigger hurt than the breaking of Janet’s fingernail. To represent ‘loss of an arm’ as ‘John (-1)’ and ‘breaking a fingernail’ as ‘Janet (-1)’ is deeply counter-intuitive – we know that we would much rather break a fingernail than lose an arm, and it is generally felt that Janet may be required to accept the loss of a fingernail to save John’s arm188. Moreover, the objection doesn’t simply appeal to our intuitive responses; counting each loss the same threatens incoherence because of intransitivity – if John’s arm is treated as equivalent to Janet’s fingernail or Janet’s arm (also (-1)), which is in tension with the judgement that it is worse for Janet to lose her arm rather than her fingernail. An adequate theory of interpersonal comparison will have to take into account that there may be differences between people. These comparisons may of course be inexact – we may not be able to say whether it is worse for John that he lose an arm
    
    188
    
    Taurek (1977) pp.301-2.
    
    70 than that it is worse for Janet for her to lose her arm – but we must be able to say it is worse for John to lose his arm than for Janet to break her fingernail. Once this is admitted, however, it is no longer clear that benefiting the greater number produces most happiness. The particularly problematic examples concern cases where a significant harm to a few is outweighed by smaller benefits received by many individuals. The consistent utilitarian then has to drop the phrase ‘of the greatest number’ and simply recommend whatever distribution will maximize aggregate happiness. This not only clearly separates the utilitarian criterion from any majoritarian procedure but also raises further problems of its own – for instance, if there was a single ‘utility monster’ (person who is exceptionally good at converting resources into utility)189 then utilitarians seem committed to giving him all resources, even at the cost of others starving. I do not believe that classical utilitarianism is a plausible moral theory and touch again on some problems in section 2.8, below, but here my critique is intended to show only that its aims cannot be perfectly realized by majority-rule.
    
    (2.5) Can Intensities be Accommodated? As we have seen, the utilitarian aim of maximizing aggregate happiness only justifies majority-rule if majority-rule produces maximum happiness, but that does not seem likely when people have equal votes to represent unequal interests. This section explores whether various loosely majoritarian procedures can reflect differences of interest and therefore better realize utilitarian ideals. The problem here is not simply that utilitarians cannot account for differing preference intensities between two people – the measurement and comparison of
    189
    
    Nozick (1974) p.41.
    
    71 which is itself a problem, that I do not go into here – but that it is hard to see how these intensities (even assuming they are meaningful) can be represented by votes. When individuals are only allowed to vote for or against a proposal, their vote effectively records a +1 or -1, but no more. We cannot tell, simply from the fact Janet and John both voted against proposals, that the former did so because it threatened a loss equivalent to a broken fingernail while the latter was threatened with losing his arm. The problem is that voting only compares ordinal preferences, yet what we seem to need is a cardinal comparison – one that tells us how much more John wants X than Janet wants Y. Before giving up on the aim of reaching utilitarian outcomes, however, I want to discuss four suggested routes by which voting procedures may take some account of intensity of preference. Note, however, that while all of these may serve to produce somewhat better outcomes, they certainly do not guarantee optimal outcomes in the automatic way envisaged above (section 2.3). All of these adjustments make the system somewhat imperfect – which is why, after dismissing them, I turn (in section 2.6) to other imperfect procedures. (a) Borda Counts The Marquis de Borda proposed a rank-order method in 1770. According to this procedure, each elector orders all the n options. First preference is given n-1 points, second preference n-2 and so on down to last (least preferred), which gets no points. The winner is the option with most points. This reflects the difference between an option being ‘first preference’ and ‘second preference’ and attempts to most please everyone (collectively), rather than fully-pleasing most (as a simple plurality/majority system). This would seem to promote utilitarian outcomes; for example, it would elect someone who was widely popular, even if second choice, over someone who
    
    72 had a narrow majority of first preferences but was otherwise widely detested. For example: Fig. 2.1 Borda Rankings Preference 1 2 3 … 24 25 26 51% A B C … X Y Z 49% B C D … Y Z A
    
    51% (i.e. a narrow majority) rank option A top and the other 25 in order, B-Z. The other 49% rank A as the worst (26th) option, but otherwise B-Z in order, 1st-25th. Here majority-rule chooses A, which gets 51% of the vote to B’s 49%. It is unlikely, however, that A maximizes the total amount of satisfaction, because although 51% of people get their most-preferred option, the other 49% get their least-preferred190. Probably B would be better – first choice of 49% and second choice of the rest. This is the case in favour of the Borda count, which takes second-, third-, and other subsequent-preferences into account, as a proxy for intensity. The problem with this method (assuming it is trying to maximize utility, as described) is that it uses an ordinal ranking as proxy for intensity; what is really needed is some cardinal measure, which reflects the fact that, for a given voter, there may be a larger gap between A and B than B and C. We can see the problem with another example. Suppose an election consists of one conservative (right-wing), a communist (extreme left) and an extreme socialist (not quite as far left as the
    190
    
    In a vote between A and B, this may represent the case where an almost indifferent majority (the 51% that barely prefer A to B) out-vote what is presumably an intense minority. C.f. Mackie (2003) p.133.
    
    73 communist)191. Here, there is very little difference between the communist and extreme socialist – many of those who vote for either might be almost indifferent between the two. Simply representing the voter’s rankings as (2, 1, 0) does not reflect how much he prefers one to another, when on a cardinal scale it might be (10, 9, 1) if he was left-wing or (17, 2, 1) if he was a conservative192. Even in the previous example, it is possible that the 51% really strongly prefer A, and detest the other candidates almost equally, while the 49% do not really care among any of them193 – regarding even A (their lowest choice) as not much worse than B (their first preference) – so in this case majority-rule might produce more utility than the Borda count. The more significant problem, however, is that the Borda count is manipulable because it is affected by the number of options available. In the above example, for instance, B beats A only because of the presence of C-Z; if the other 24 candidates were removed then A would win. The rank-ordering of the candidates is being used as a proxy for intensity, but in fact someone’s preference for A over B does not – ordinarily – depend on whether there is another option between them194. Condorcet criticized this as making irrelevant comparisons bound to lead to error195. The problem is not simply, however, that it may inaccurately reflect true intensities of preference. There is a further problem that voters can deliberately manipulate their preferences – e.g. putting a serious rival candidate lower down their list, giving more points to those who are unlikely to win. By distorting the expression of their
    191 192
    
    I assume a simple left-right economic dimension and single-peaked preferences. Borda appeals to something like the principle of insufficient reason, saying “because of the supposed equality between all the electors, each place given by one of the electors must be deemed to be of the same value and to assign the same degree of merit as the corresponding position given to another candidate, or to the same candidate by any other elector whatsoever” [quoted Black p.157]. This may be true in general, but seems clearly false in specific cases, such as this one. C.f. Black p.178 193 To put it in terms of ‘approval voting’, the 51% might approve only A, while the 49% would approve all 26 candidates. 194 And note that, if there are only two options, Borda collapses into simple majority-rule. 195 McLean and Urken (1987) p.34.
    
    74 preferences, they can secure outcomes more likely to be in their interests, but this runs counter to the aim of producing the greatest social utility. In light of this problem, Borda was forced to admit “My scheme is only intended for honest men”196, for otherwise it is unlikely to realize the greatest utility. There may be contexts where a Borda count is an acceptable procedure – in particular, situations where the options are fixed independently and it is likely that differences between them are approximately equal. However, we can have no general confidence that Borda scores accurately reflect cardinal utility. As such, this method cannot be widely used to approximate utilitarian outcomes. (b) Weighted Voting The Borda method makes first preferences count for more than second preferences, but as we have seen the problem is that the difference between them need not be constant. An alternative is to simply make some votes count for more, weighting them in proportion to what each has at stake. While such weighted voting has historically had anti-democratic associations, for example in Aristotle197 and J. S. Mill198, some recent proposals have advocated it as some form of ‘proportional equality’199. It is often claimed that it is unjust to treat unequals the same; for example, Brighouse and Fleurbaey point out that one of a group of friends who is not going to dinner with the rest should have no say over the restaurant they go to, but claim that this is merely the limiting case of a proportionality principle that also
    
    196 197
    
    Quoted Black (1998 [1958]) p.182. Aristotle (1988) pp.145-6 [Politics VI.iii (1318a11-18b5)] suggests 1,000 poor people might have the same power as 500 rich ones – taking wealth as a sign of merit (axia), or perhaps what each has at stake in the state (polis). He doesn’t spell the details out precisely, but it seems he thinks if the two groups each own as much property, the two groups should be considered equal, despite differing in numbers. Thus what is counted equally is property (like share owners) rather than people per se, and this is equivalent to weighting each person’s vote by their property (or number of shares). 198 Mill (1998 [1861b]) pp.334-41 suggests the educated should have more votes. C.f. Berger (1984) pp.192-4. 199 I focus on Heyd and Segal (2006), and Brighouse and Fleurbaey (2006).
    
    75 dictates that one only joining them for dessert should have less say over the restaurant200. Different justifications can be given for such schemes, but Brighouse and Fleurbaey focus on procedural fairness and good consequences201. The present chapter is concerned with the latter of these considerations, while procedural fairness is addressed in the next chapter. Brighouse and Fleurbaey propose that “Power in any decision-making process should be proportional to individual stakes”202. This serves to make democracy more conformable to liberalism for, as in the previous paragraph, it excludes those who have nothing at stake, resulting in the conclusion that only the individual should decide over self-regarding issues, and justice, for it gives those with stronger claims, according to some unspecified theory of justice, more weight. The idea of giving each person a vote weighted in proportion to what they have at stake seems a promising way to realize better outcomes, because it reflects the fact that John’s arm matters more to him (say, 5 units) than Janet or Jane’s fingernails matter to them (say, 0.1 unit each). While simple majority rule would allow Janet and Jane to out-vote John (a case of a relatively apathetic majority defeating an intense minority), a properly proportional scheme would allow John to outvote as many as 49 people who each stood only to lose a fingernail. There are some, of course, who insist this is not enough – for instance, those who believe that we should look only to pairwise comparisons between individuals would hold that John’s claim should defeat any number of (significantly) smaller claims203. Nonetheless, while such a system may not perfectly realize optimal outcomes, it offers a much better approximation
    
    200 201
    
    Brighouse and Fleurbaey (2006) p.7. Brighouse and Fleurbaey (2006) p.2. 202 Brighouse and Fleurbaey (2006) p.3 [emphasis in original]. 203 See Scanlon (1998) p.238 and Nagel (1979) pp.124-5.
    
    76 than simple, egalitarian voting in which all claims are given the same weight204. Moreover, it should be noted that one thing differential weights can reflect is priority to the worst off205, and Brighouse and Fleurbaey are at pains to point out that their proposal is not therefore intimately tied to narrowly-utilitarian reasoning – it can, for example, measure stakes by resources206. As intuitively promising as such proposals seem, however, they certainly cannot guarantee better outcomes, and face a number of serious problems. Firstly, there is the need to decide what each has at stake. Brighouse and Fleurbaey are clear that this is determined by a theory of justice, not strength of subjective preferences. They suggest that this may be less controversial than the substantive issue in question207, but that is not necessarily so – there is considerable debate between rival theories of justice; they themselves have seemingly ruled out one substantive position (utilitarianism) and, as Heyd and Segal observe, it may be reasonable to think either that women should have more say on abortion issues (because their bodies are so intimately involved) or that they should have less (because they are too involved to consider the foetus’ interests)208. Moreover, it is not clear that all affected interests should have influence over the decision. For example, in the restaurant-choosing case, surely the owners and staff of nearby restaurants have their interests affected by the decision, but it is not obvious that they should have any say. Brighouse and Fleurbaey are, however, explicit that what counts as a (properly) affected interest depends on one’s theory of justice, and may therefore exclude external preferences and the like209. They may therefore reply that the worry of over-inclusiveness is addressed by
    
    204 205
    
    Brighouse and Fleurbaey (2006) pp.16-8. Brighouse and Fleurbaey (2006) p.18. 206 Brighouse and Fleurbaey (2006) p.17. 207 Brighouse and Fleurbaey (2006) pp.3-4. 208 Heyd and Segall (2006) p.106. 209 Brighouse and Fleurbaey (2006) pp.4-5, 9 and 17-9, Dworkin (1977) pp.234-9, Goodin (2007) p.51.
    
    77 the close connection between justice and democracy in their theory, which resolves who should have a say and tends to outcomes that are both democratic, so defined, and substantively just. In any case, we still need some practical way of assigning weights. While Brighouse and Fleurbaey bracket this issue, Heyd and Segal propose that weights can be assigned by a prior voting stage – first, everyone assigns weights to each group, the average of which may, for example, tell us that women should count twice as much as men in the subsequent vote on sexual harassment, and then the vote is conducted with these weights – in which a proposal endorsed by 35 women and 10 men will beat one supported by 15 women and 40 men210. Heyd and Segal explicitly exclude concerns about strategic voting in the first stage, assuming that true utilities are known211; but this raises the question why they employ the first vote at all, rather than simply appealing to these utilities for their weighting. Also their proposal that one’s vote depends on “the average weight members of society are willing to give to each other’s preferences”212 seems to contradict Dworkin’s claim that it is “unfair [to count external preferences] because these preferences, like racial prejudice, make the success of the personal preferences of an applicant depend on the esteem and approval, rather than the competing personal preferences, of others”213, which implies that it should not matter what others think of you. Nor is it clear why there should be only two stages of voting: why not have a prior stage, where everyone can decide how much weight each group’s opinion is to have in assigning weights for the substantive debate, thus allowing me to give a lower weight to the Nazi’s lower
    210 211
    
    The weighted votes being 80 versus 70, as opposed to the simple numbers 45 versus 55. Heyd and Segall (2006) pp.108, 115. 212 Heyd and Segall (2006) p.105. 213 Dworkin (1977) p.238. Contradiction may be avoided because the former depends on the weight given to a group defined by ascriptive characteristics, e.g. lay men, while the latter seems to depend on the content of one’s view. I do not, in any case, intend to explore Dworkin’s critique of ‘external preferences’ here; merely raise it as a problem to be dealt with.
    
    78 weighting of Jews? And if we cannot stop the regress at two stages, it threatens to be infinite. In practice, these difficulties need not be so severe in small groups of the sort considered here. Even if not marked by close affective ties, it is generally easier for each person to assess what others have at stake, simply because of the smaller numbers of people involved and fact that they can be observed in ‘face to face’ interaction. Many such groups operate by discussion and consensus, rather than any formal voting procedure. In such cases it is plausible to suggest that majorities may sometimes defer to minorities out of solidarity and a sense of fairness and that they implicitly do approximate something like Brighouse and Fleurbaey’s proportionality principle, recognizing that some do have more at stake in certain decisions. When it comes to larger, impersonal democratic units, however, where people do not know each other as well and are less prepared to surrender their own interests for others, then such proposals seem likely to fail on the difficulty of measuring and comparing stakes. This would be a significant challenge to any attempt to implement weighted voting at the nation state level, but such groups are not my concern here – I assume that democracy is most easily achieved in the small groups where face to face contact and the fact that everyone may know everyone makes it more likely that people can effectively gauge each other’s strength of preferences (see chapter 4.6-7). Measuring individual ‘stakes’ is not, however, the end of the difficulty. It has been well documented that voting power need not be proportional to the number of votes. For example, if votes are split 3, 3, 3, and 1 (with 6 needed for a motion to pass) the fourth person has no voting power – they are never vital to any passing motion, as it always requires at least two of the others, who are sufficient
    
    79 themselves214. Infamously the weighted voting employed by the six-member EEC in 1958 gave Luxembourg no power whatsoever215! Moreover, for any given electoral system, different proposed measures of voting power can give very different answers216. Since Brighouse and Fleurbaey want to make power proportional to individual stakes, they need to define not only those stakes (which requires a theory of justice) but voting power. Maybe these problems are not fatal to weighted voting schemes – I cannot offer a complete evaluation of all such proposals here. Nonetheless, I think it suffices to make two observations: Firstly, while giving those who have more at stake more voting power will better conduce to optimal outcomes, they do not guarantee such since voters may still be mistaken about their own interests and, though weighted voting addresses the problem of differential intensities, it is still subject to the other objections raised in this chapter. Secondly, nothing in my positive proposal of lotteryvoting is inherently opposed to weighting voting – indeed, as pointed out in chapter 6, it is actually quite conducive to such, should we wish to weight votes for any reason. For now, however, it is clear that weighted voting faces significant obstacles if it is intended to lead to utilitarian outcomes. (c) Cumulative Voting, Log-Rolling and Vote Trading
    
    214
    
    If the numbers are relatively arbitrary, as in the EEC case, then this is a problem. It’s less obviously so if they reflect, say, number of constituents represented, as then the two with three votes each would represent, say, 60,000 of the 100,000 people. However, we should remember those constituents are unlikely to be homogeneous in their preferences. Even if the representatives represent a majority of their 30,000 constituents, that could be as few as 15,001 each. It would seem fairer to give them three representatives (one per 10,000) rather than grouping their votes into a more powerful bloc. 215 In 1958, the EEC employed weighted voting to reflect differences in size and economic power between its member countries – France (4), Germany (4), Italy (4), Belgium (2), Netherlands (2) and Luxembourg (1). Twelve votes were needed to pass a motion; requiring either the three large countries (France, Germany and Italy), or two of those plus Belgium and the Netherlands. Luxembourg was never pivotal to a winning coalition; because all the others had even numbers of votes, they could never combine to give eleven, so any winning coalition including Luxembourg would still be winning without. See Felsenthal and Machover (1998) p.4 and A. D. Taylor (1995) pp.45-6 and 71-5. 216 A. D. Taylor (1995) pp.217-24.
    
    80 It may be practically impossible or undesirable to make some votes count for more, but perhaps better outcomes can be realized if people are given more freedom to use their votes as they like. This section discusses three such ways people can use their votes to bring about better outcomes: cumulative voting217 (in which people are given one vote for each of a number of issues, but can use more of those votes on the issues they feel strongly about having no say on others), log-rolling (where I agree to vote your way on issue A, in exchange for you voting my way on issue B) and vote trading (where people are allowed to buy or sell votes). One option is to give people one vote per issue, but let them divide those votes as they wish over a number of different issues218. Thus, if we face votes on policies A, B, C, D and E then I get five votes – if I care very strongly about D, marginally about B and not much about the other three, then I may cast four of my votes for D, one against B and effectively have no vote on A, C or E. This gives some crude measure of intensity – my strength of feeling for D is shown by the fact that I am willing to give up my vote on A to have more influence on D. This goes some way to solving the problem of determining the intensity of people’s preferences, but it is only very crude. Two individuals may not care equally strongly about the five policies on offer at once – one person may care very strongly about only one of them, while someone else may care strongly about two or three of them. This is not to say that one person may care more over all issues than another. Though we may find it hard to know what that means, we can imagine one person of a very sensitive disposition who cares a lot about all sorts of things, while another person is more Stoical or apathetic, and
    
    217
    
    I use the name cumulative voting, although this differs from the usual understanding of that term, in which voters can split their votes between different candidates in one (multi-seat) election, it shares the fundamental feature that voters can choose to split or concentrate their votes. 218 This is suggested by Guinier (1994) pp.14-6, 94-5, 107-8, and 117-23.
    
    81 not much bothered by anything – but it is not obvious that the former should have more votes219. The more serious problem for such proposals is that the result of the votes depends on what issues are currently on the table together. The earlier vote between issues A-E would be affected by adding F to those decided at the same time, and whether or not I cared strongly about F. This violates something like the Independence of Irrelevant Alternatives – though it is not simply that the choice between coffee and tea is affected by the presence of hot chocolate on the menu, it is rather that the choice is affected by whether we are also to decide something else unconnected at the same time220. Moreover, this also makes such a system open to manipulation by strategic voters. For instance, I may actually care more about issue A than D, but think that A is effectively a foregone conclusion while the vote on D will be marginal – thus, rather than using my votes on the issue that matters most to me, A, I may use them on D, where I hope to have more influence and therefore my votes produce a greater expected benefit. By doing so, I misrepresent what I really care about and therefore undermine the objective of achieving the maximum social utility to better serve my own interests. Finally, such cases of manipulation serve to illustrate the fact that any such scheme, which lets voters allocate their votes as they wish, risks giving those who are better able to work the system more effective power. The second option is the perhaps more familiar log-rolling, whereby those who feel more strongly about A than B make an arrangement with those whose priorities are the other way round that each will support the other on the issue that matters to them – e.g. I am relatively indifferent on B, but agree to vote for it with you, if you in
    
    Compare the ‘utility monsters’ of Nozick (1974) p.41 and Scanlon (1975) pp.659-60’s observation that one’s claim on us depends on the objective, rather than subjective, importance of her interest. 220 Although of course two seemingly different issues might be complementary, e.g. what biscuits we have with our hot beverage.
    
    219
    
    82 turn vote against A with me. This allows two groups to coordinate in order to increase their chances of getting their way on the issues they feel strongly about by sacrificing their influence on issues they care less about. Of course, this carries overtones of elite collusion and the strategic nature of such bargaining may run counter to strict equality. It may be a problem that some groups will have better bargaining positions or more potential partners than others. Log-rolling certainly does not guarantee maximum utility, since two not-so concerned minorities can collude to form an apathetic majority. Nonetheless, it is a possibility that may be worth preserving (see chapter 5), if it is likely to lead to better outcomes, because mutually acceptable compromise can be better reached through such personal bargaining than through impersonal mechanisms such as the Borda count. Thirdly, one might suggest that an open market in buying and selling votes would promote more efficient outcomes221. If I care strongly about issue A, then I could pay you to vote against it, and ex hypothesi the payment you receive makes you better off; thus utility is served by mutually beneficial trades. While advocates of such proposals sometimes suggest that straightforwardly buying votes in this way is not so different from – and more honest than – ‘buying’ them through advertising or offering electoral ‘bribes’ (e.g. tax cuts), many think it objectionable that money should have so much influence in politics. These objections might persist even if we had initial economic equality, for example amongst those who think different goods are to be distributed according to different logics, and that money should simply not be relevant to politics any more than to healthcare or education222. One need not think the influence of money wholly inappropriate, however, to recognize that, at least as things currently stand, people are in unequal bargaining positions. Just as poverty
    221 222
    
    Buchanan and Tullock (1962) pp.257-61. Walzer (1983) pp.10-3 and passim.
    
    83 forces some people into exploitative jobs, or perhaps worse – e.g. selling their bodies for medical experiments, prostitution or organ donation – a scheme where votes can be bought and sold may simply see the poor forced to sell their votes to the rich, and the resultant power of the rich may allow them to perpetuate – or even increase – the existing inequality. While perfect markets may create efficiency, whether or not they produce fair outcomes depends on the initial situation223, and even efficiency depends on idealizing assumptions that may not hold in a world of imperfect information and competition. Thus it is certainly not obvious that a market in votes would produce better utilitarian outcomes and, even if it did, we may well have other reasons to reject such a proposal. The three suggestions in this section have all been premised on the claim that people will be better able to use their votes to further their interests – and so utilitarian outcomes – if they are given more freedom to use their votes, e.g. by distributing them as they wish over issues or trading them for other votes or money. While there may still be much to be said for proposals that let people use their votes in these ways, principally in terms of liberty, they may also be undesirable for other reasons, e.g. unfairness. Whatever the other merits and demerits, however, it seems clear that none of them can guarantee utilitarian outcomes. Indeed, it is possible that none of them make utilitarian outcomes any more likely, but that does not have to be proved here – so far, I am only arguing against perfect procedural justifications of majority-rule. There is, however, one further related possibility, which will be discussed separately – those who feel strongly may simply try to persuade others to vote their way. (d) Pressure Group Campaigning
    
    223
    
    C.f. Dworkin (2000) p.68, Cohen (1989) p.933.
    
    84 Dahl suggests that, in polyarchies, there is no monolithic majority that governs224. This would be potentially mixed news for anyone advocating lotteryvoting. It suggests that we do already have a rotation of minorities in government, so even if such is a normatively attractive goal we do not need lottery-voting to achieve it. For present purposes, Dahl’s interesting claim is that intense pressure groups can get their way because they can convince others to vote by campaigning. He supposes that the more intensely a group feel about a specific issue, the more energy they are likely to put into campaigning and the more success they will have winning over others. If they feel sufficiently strongly, then they are likely to win over a majority to their view. We should distinguish two different ways in which persuasion might operate: firstly, campaigners might convince others that they are right – bringing the others round to share their view – or, secondly, while the others may retain their original opinions they might be persuaded to vote otherwise than they would, simply in recognition of the fact that those people feel strongly and should get their way. These forms of persuasion may be more applicable to different types of decision, e.g. the former but not the latter is more plausible when discussing matters of justice, but both can operate in a single case, for instance if we were deciding between an Indian or Italian restaurant, A may seek to change B’s preferences (e.g. by pointing out that the Italian does pizza as well as pasta or has a good range of vegetarian options) or simply to make the case that they strongly prefer Italian so that B, while still preferring Indian from a self-interested point of view, accedes to going to the Italian out of regard for A’s wishes. The former perhaps represents the faith of deliberative democrats that, if people can talk and reason long enough, they can eventually come
    
    224
    
    E.g. Dahl (1956) p.132.
    
    85 round to rational consensus. Certainly it seems desirable for people to engage each other in debate, and this may improve decision-making if some can convince others that they are right (see chapter 5.6-7). It appears unlikely, however, that unanimous agreement can be reached – it is not simply that people will be biased to their own interests, but there will be reasonable indeterminacy between potentially competing values, where there is no one ‘right answer’ but a plurality of reasonable trade offs. While this cannot be conclusively proven here, if I am right then each group may have a reasonable position, neither of which is actually better than the other, which makes it unlikely that one can persuade all others that they are right. In any case, if one group are able to persuade, in the first sense, the other that they are right, then that is good reason to implement the now agreed policy, because there is no longer a conflict of interests – everyone is able to get what they want. Perhaps what Dahl requires is for others to be sufficiently moved by the strength of feeling shown by campaigners to be willing to allow them to get their way, even though they are not convinced to share this view225. But how realistic is this? Maybe where some are apathetic but see that others feel strongly they can be motivated to vote out of sympathy for them – a solidaristic community may even develop informal ‘log-rolling’ conventions – but that is assuming that the people in question neither vote for their own interests or simply abstain (which would seem quite likely, if they are apathetic). In some cases where others feel strongly I may think there is a utilitarian reason to satisfy them, but in others I may judge otherwise, either because I worry about being held hostage to deliberately cultivated intensity or because I feel the intensity unreasonable given the objective importance of the issue at stake226.
    
    225
    
    Rehfeld (2005) p.233 proposes minorities should get their way only when they persuade the majority to vote for them. One problem is that everyone in the majority may think it’s just for the minority to get their way on some decisions, but not be able to coordinate which. 226 Scanlon (1975) pp.659-60.
    
    86 Dahl makes a number of questionable assumptions. It is not clear that, just because a group feels particularly strongly, that this will result in campaigning activity. Some groups are better able to organize than others, and also the incentive to campaign may depend on how likely it seems to be successful – if 40% of people feel reasonably strongly, it may well be worth them campaigning, but a group of just 10% – no matter how intense they feel – may never bother. One advantage of lotteryvoting, as pointed out in my introduction (section 0.5) and chapter 4.9, is that it always gives groups reason to win over as many others as possible, regardless of whether they already have a majority or would move only from a tiny to a small minority. Further, it is assumed that this campaigning will be effective in winning over other voters. The success with which one is able to persuade others need not relate to one’s own intensity of feeling at all – I may very easily be able to persuade others of something I do not care strongly about at all, but not of things I do. This problem is exacerbated by the fact that intensity is likely to correlate to extremist or ‘non-negotiable’ positions, such as matters of religious faith, where believers feel strongly about their preferences and are generally less open to rational persuasion. Moreover, not all groups will be equally able to persuade others to join them. While, if Dahl is right, rule might be by shifting coalitions of different minorities, it does not follow that all minority groups are equally included – some might be in many coalitions while it is still possible that a certain group might be regarded as ‘untouchables’ or pariahs and never in fact likely to be included227. Dahl’s empirical assumptions at least mitigate the dangers of majority-rule, but they do not necessarily result in fair access to power for all, and his claims that intensities can be accommodated by persuasion are unsubstantiated. The idea that
    
    227
    
    For criticisms of Dahl, along these lines, see Lively (1975) pp.20-4 and Hyland (1995) pp.89-90.
    
    87 others can be persuaded to vote for an outcome just because they see a certain group feel strongly about it, however, has affinities to the explicitly imperfect approach in which all vote for the social rather than individual good, to which I now turn.
    
    (2.6) Imperfect Procedural Conceptions of Democracy So far, we have assumed a utilitarian notion of the good, and seen that this cannot be perfectly achieved through any practical voting system. One could suggest that voting could be an imperfect procedure in the first sense identified above (section 2.2). If this is so, then an alternative way of reaching it would indeed be to model voting on a jury trial. Let us suppose that each person forms a judgement of what conduces to this good, and we take the majority verdict as most likely to be right. Having postulated an independently-existing ideal, the question is how we are to reach it228. Given what has recently been said, the procedure must be imperfect, but we want it to be better than a ‘stab in the dark’, like taking a random name from the phonebook. David Estlund proposes “Democratic legitimacy requires that the procedure is procedurally fair and can be held, in terms acceptable to all reasonable citizens, to be epistemically the best among those that are better than random”229 and claims an epistemic argument “promises to explain, as fairness alone cannot, why majority rule is preferable to empowering randomly chosen citizens: under the right conditions majority rule is vastly more likely than the average individual to get the morally correct answer”230. But what basis do we have to assume that majority rule is
    
    228
    
    Actually, in light of the two versions of imperfect procedure identified above, the question could be how to identify (and reach) the ideal or simply how to achieve it once known, but this makes little difference for now. 229 Estlund (1997) p.174. 230 Estlund (1997) p.185.
    
    88 more likely right than wrong? One possibility (rejected by Estlund231) is to appeal to Condorcet’s Jury Theorem. The jury theorem states that: “[I]f each member of a jury is more likely to be right than wrong, then the majority of the jury, too, is more likely to be right than wrong; and the probability that the right outcome is supported by a majority of the jury is a (swiftly) increasing function of the size of the jury, converging to 1 as the size of the jury tends to infinity”232 For instance, in a group of 399 people, each of whom had a probability of 0.55 of getting the right answer, the probability of a majority getting the right answer is 0.98. For a benevolent dictator to do better, she would need a greater than 0.98 probability of getting the right answer, but we can assume no one is this wise233. Though it may appear complicated, the basic idea behind the jury theorem can be explained quite intuitively234. Consider tossing a fair coin – since neither heads nor tails is more likely, we would expect them to occur roughly 50/50, and to more closely approximate this the more times we tossed the coin (six heads out of ten wouldn’t surprise us, 60 out of 100 might, and 600 out of 1,000 really would). Since our expectation is even, there is no greater probability of 1,000 tosses producing a majority of heads than ten tosses. But now consider a chance event where one outcome is more likely – say, rolling 3+ on a six-sided die. We would expect to do this around two-thirds of the time on each roll (2/3=67%). If we roll the die three times, the chances that at least two of those will be 3+ are 20/27 (=74%). If we roll the die 100 times, we would be absolutely astounded if the majority of results were not 3+ (given that ordinarily we would expect two-thirds of them to be so). If the jury argument is successful, then it may justify a wide franchise and majority-rule, even over a particularly competent elite – as Przeworski notes
    
    231 232
    
    Estlund (1997) p.185ff and Estlund (2007) pp.223-236. List and Goodin (2001) p283; c.f. Przeworski (1999) pp.26-29. 233 Przeworski (1999) p.27. 234 C.f. Estlund (2007) p.15.
    
    89 “collective competence may increase with the size of the assembly even if increasing the size lowers the average individual competence”235. However, there are a number of obvious problems with the argument. Firstly, it assumes that individuals are reasonably competent – at least that average competence is above 50%. This assumption may be unjustified, but it is arguable that if it does not hold then we should give up on democracy and submit to expert rule236. Perhaps more problematic is the assumption that there is a single right answer, neglecting the significance of conflicts of interests – this is something I touched on in section 1.2, above, but will return to in section 2.8, below. First, however, I turn to some smaller difficulties.
    
    (2.7) Minor Problems with the Condorcetian Paradigm Even if we assume that this imperfect procedural picture is possible – in the sense that there is a good that all citizens can aim at and grant that they could identify it – this seems to place significant burdens on citizens. Firstly, there is considerable epistemic difficulty in working out what is the best overall outcome for everyone, including impersonal goods, future generations and so on, compared to merely evaluating what is good for oneself. One defence of liberal-democracy relies on the idea that citizens are best placed to know their own good, but it does not follow that they are best-placed to know everyone else’s – maybe government officials can better make these judgements. Calculation is made yet more difficult by the pervasive effects of cognitive bias. Even when citizens are sincerely aiming for a collective good, they are always liable to favour their own group interests unconsciously, simply
    
    235 236
    
    Przeworksi (1999) p.27; c.f. Aristotle (1988) p.66 [Politics III.11 (1281a40-b15)]. Plato (1992) p.262 [Rep 590c-d], Schumpeter (1967) pp.173-7.
    
    90 because they find these easier to identify with237. And it will be even harder to know what other people want if we cannot take their votes as indicative of their assessment of their own interests (but rather, their assessment of everyone’s interests). The burden is not only epistemic, however. Supposing that one has genuinely identified this good, it need not coincide with one’s own interests; so this procedure relies on people being able to set aside their own immediate good in order to take into account, possibly distant, others. In this case, it may be even harder than often appreciated to explain why people vote. Rational choice theorists often see relatively high levels of voting as a paradox, given the small probability of personal benefit; but on the present theory there may in fact be negative personal benefit and, even if there is a personal benefit or one is motivated by social benefit, the probability of one’s vote making a difference – given that everyone is supposed to be aiming at the same thing – is likely to be even smaller. Given these problems, it is unlikely that everyone will successfully identify and vote for the greatest collective good. This is exactly the situation the jury theorem is designed for, of course – provided mean competence remains sufficiently high, then we are best taking the majority as the more reliable guide to the good. However, we have to assume not only that people are more likely than not to identify the right answer but that they are more likely than not to actually vote for it. Moreover, there is a yet more radical challenge to be made: I now wish to question whether there is any determinate greatest social good at all.
    
    237
    
    Lord et al (1979) passim, Mele (2004) pp.246-50.
    
    91 (2.8) Indeterminacy Up until now, I have assumed that the goal to be reached – through either perfect or imperfect procedure – is the simple utilitarian one of the greatest happiness, where ‘happiness’ can be understood more widely than in hedonic terms, but is essentially a factor only of personal well-beings. I have argued that it is very hard to construct any notion of maximum happiness from voting preferences, since equal votes do not reflect unequal intensities of interest, while any proposal that gives some more voting power need not accurately reflect the objective importance of their interests. Section 2.6 suggested voters could arrive at their own judgement what maximizes social good and then vote to realize this. Once we adopt this imperfect approach, we are not confined to a person-affecting notion of good. Individuals’ judgements of what is best can incorporate impersonal good-making factors, such as equality or the environment, which, insofar as they do not affect any individual in particular, are not considered by self-interested voting and, therefore, cannot plausibly be guaranteed by a perfect procedure. Our overall assessment of the state of affairs need not be solely dependent on the individual utilities in that state but can incorporate other values such as equality. This allows us to say, for example, that (6,6) is better than (7,5) or even perhaps (8,5). We can thus arrive at a ranking of social states that reflects whatever we think really good, personally or impersonally, that is immune to various objections to utilitarianism, because it can consider all possible values, including justice. We might say that our ranking of states of affairs constitutes a form of ‘representative consequentialism’238. If such an approach gave us a complete impersonal ordering of social states, then we may accept the consequentialist injunction to ‘bring about the
    
    238
    
    Scanlon (2001) p.39.
    
    92 best outcome’, while differing from classical utilitarians in not understanding this in terms of individual utilities. The prospects of reaching such a complete and determinate ordering, however, appear slim239. Some are sceptical that it makes any sense to speak of an impersonal point of view and argue that we should focus only on individuals240. Taken to its extreme, this opinion leads us to conclude that only Pareto improvements can be regarded as simply better, and that any cases of interpersonal conflict must be concluded ‘on a par’ or strictly incomparable. Taurek, for example, suggests such an approach when he claims that “I cannot imagine that I could give David any reason why he should think it better that these five strangers should continue to live than that he should”241. However, Taurek does not actually deny that it can sometimes be right for one person to make a sacrifice for another. Though he thinks A would not be required to make a certain sacrifice to spare B a slightly larger loss, he thinks there comes a certain point where A would be required to do so – for instance, A might be required to suffer a broken arm to save B’s life242. While Taurek might be reluctant to express this conclusion in terms of the impersonal betterness of these outcomes, preferring to focus only on rightness, there is no reason to reject representative consequentialism as a façon de parler according to which we judge the broken arm better because it is what should be brought about. On this account, we can say that the social state (8,8) is unambiguously better than (4,4) because everyone is better off. Moreover, if we accept the Pareto criterion, we can say (8,8) is better than (8,7) because one person is better off and no one is
    
    Sen (1992) pp.46-9, 131-5 and 143-4, Shapiro (2003a) pp.39-44 and 49-50, Taurek (1977) pp.3045. C.f. Guinier (1994) p.103: “Where preferences are dispersed, decisions should not be made according to any single conception of public good”. 240 Nagel (1991) pp.64-9, Scanlon (1998) pp.229-30. 241 Taurek (1977) p.300. 242 Taurek (1977) pp.301-2.
    
    239
    
    93 worse off. The problem comes when interpersonal comparison is necessary, however. This is not simply a problem of measurement – though there may be such difficulties – but one of making a trade-off between two distinct people. Suppose we have to choose between (10,8) and (8,9). Even if we accept that the former has a higher level of aggregate utility, it does not follow that it is the outcome to be brought about, for this is what ignores the separateness of persons – the extra two units of utility for the first person in no way compensate the second for his loss. Since what is at stake for each person is ‘on a par’ or roughly equal, the two outcomes must be considered socially on a par. The first person justly prefers (10,8), the second (8,9), and we cannot say either is ‘socially better’243 in the way we might had the choices been (20,8) or (8,9)244. Thus, even if we can compare what I have to gain to what you have to gain, the fact that one of us has more at stake is not enough to determine what should be done. In a choice between (10,8) and (8,9) both parties have opposed interests at stake and it seems reasonable to toss a coin, offering each an equal chance of satisfaction, since the slightly greater benefit to the first person is no compensation to the second. Though these cases are not exactly zero-sum, the conflict cannot be resolved by an appeal to aggregate utility. Recall that in section 1.2, above, I argued that a co-ordinated outcome may be best for all, even if it is not the best pattern of co-ordination for given individuals (perhaps for any individual). This means we can agree that some co-ordination is socially better, but we cannot use social betterness to resolve which pattern of coordination should be adopted, because that is where there is conflict. To repeat the example used there, suppose I am better off with a ‘drive on left’ rule and you are
    
    243
    
    ‘Better’ here includes a value judgement that goes beyond personal utility – in the same way that (6,6) is better than (7,5). 244 This is supposed to represent something like the earlier broken arm case, where what is at stake for one person is so great as to morally outweigh the other’s interest.
    
    94 better off with a ‘drive on right’ rule. The greatest social good is clearly attained by both of us following the same rule, rather than our individual preferences and though the resulting satisfaction can be represented either (11,9) or (9,11) – whichever of us gets our way will be marginally better off – from the impersonal point of view, neither is better, so no one else has any reason to prefer one or the other on grounds of the greatest collective good. The problem is effectively a zero-sum conflict of interests. This problem of indeterminacy is more widespread than some have appreciated when we consider interpersonal distributions. Perhaps we can all agree on maximizing efficiency – by which I understand achieving the most good possible or, in economic terms, operating on the ‘production possibility frontier’ – but we will still have to decide on who gets what. To give a more concrete example, we can agree that society should produce or realize 100 units of good rather than 80, but then the conflict over their distribution is still zero-sum, between 60/40, 40/60, etc. It might be thought that 50/50 is an obvious default, but this assumes lack of disagreement over justice – whereas in reality the issue will be complicated by conflicting claims of desert, entitlement, need, capabilities, etc. What is needed is an agreement to respect Pareto improvements, which enjoy unanimous support and ensure efficiency. We need to supplement this, however, with a fair procedure for resolving distributive questions. We cannot suppose there will be a unique ‘greatest good’ that will save us from having to make these decisions245. Thus, while a theory of democracy should indeed take into account the likely good or bad consequences it will produce, it
    
    245
    
    For a more radical pluralist attack on the idea of rational consensus, see Mouffe (2000) pp.90-105.
    
    95 cannot be justified solely by such: we need an account of its fairness246. The next chapter addresses this problem, but first I recap the conclusions so far.
    
    (2.9) Conclusion Chapter 1 argued that we need justification for majority-rule. The present chapter has surveyed one possible strand of justification – consequentialist arguments that claim that we all would or should accept majority-rule because it leads to better outcomes. There is some ambiguity, however, as to whether this means better for everyone or simply the majority. To claim that majority-rule is better for everyone requires us to assume that everyone has a chance of being in the majority and so victorious, but this relies on the assumption that majority-rule is fair – something taken up in the next chapter. If we do not make this assumption, then it is unclear why those that lose out from majority-rule should accept it simply because it produces benefits for others. This utilitarian line of thinking ignores the separateness of persons, so this simple maximizing argument can be rejected as unjust. Whatever conception of the good we adopt, especially if it is an ideal one that incorporates considerations of justice, any decision procedure intended to maximize it will necessarily be imperfect. This does not mean, of course, that we should neglect the likely outcomes of our procedures, but we should be wary of seeking to justify them simply by reference to such. Even if our procedures do produce more good, there is likely to be zero-sum conflict, because of indeterminacy about what is ‘best’ or distributive questions, so we still need a procedure that is fair to everyone. The following chapter considers whether majority-rule is fair. It will also be seen that I
    246
    
    This is something Estlund acknowledges, but he assumes that majority-rule is fair and, therefore, that any epistemic advantage is decisive. I have questioned this epistemic advantage, but the decisive point is that majority-rule need not be fair if it results in perennial losers.
    
    96 favour a procedure in which individuals can vote for their own private interests. This avoids many of the epistemic and moral burdens identified in section 2.7, above. Rather than requiring individuals to vote for what is the best overall compromise, I propose a system that – as far as possible – has them vote for what they want, and then produces compromise. This is consistent with Rawls’ ‘basic structure’ approach to justice247 – where the market and government taxation/welfare policy are set up to realize justice-as-fairness given individuals who are self-interested market maximizers. This approach has been criticized by those who think people ought to consider the demands of justice in their daily lives. I do not propose here to defend this whole approach, but I think it clear that it would be preferable if institutions could realize justice without making such demands on individuals.
    
    247
    
    Rawls (1999 [1971]) pp.76-7, and 242-51. It is not, however, how Rawls thinks of voting; see Rawls (1999 [1971]) pp.313-8. Note, though, that he qualifies his imperfect account by admitting that voting can be seen as ‘quasi-pure’ within an acceptable range, which is really what I am talking about.
    
    97
    
    3 Using Lotteries to Adjudicate between People “[I]t is precisely because of majority rule that political pluralism fails… cultural pluralism calls for another kind of democracy”248 “[W]hile democratic procedures may indeed be fair, the epitome of fairness among people who have different preferences over two alternatives is to flip a coin”249 (3.1) Introduction The previous chapter rejected consequentialist justifications of democracy. Whether conceived of either as a perfect preference-aggregation or an imperfect epistemic attempt to promote social good, majoritarian procedures are unlikely to maximize utility or any conception of social good – indeed, I argued the very idea of such a maximum was likely to be indeterminate. Even if we concede that there may be a unique ‘social maximum’ in some cases, we should not expect democracy to necessarily realize such, because it is government by the people, not simply government for the people250. If we valued democracy only to the extent that is was instrumental to some ideally good outcomes then in fact we should be willing to embrace a benevolent dictatorship, such as Plato’s Guardians, if such arrangements better served our goal251. I distinguish the realization of such ideals as an aim of good government, whether democratic or not, from what makes government democratic – which is simply responsiveness to the wishes of the people252. While a good democracy is one that produces good outcomes, democracy itself is simply a matter of treating everyone equally253.
    
    248 249
    
    Leca (1994) p.62 [not emphasized in the original]. Estlund (1997) p.176 [not emphasized in the original]. It is not clear why he assumes democracy and fairness must come apart, rather than exploring ways they can be reconciled. 250 Ranney and Kendall (1956) p.16, Hospers (1961) p.383. 251 Plato (1992). 252 Woodruff (2005) p.30. 253 This leaves open the possibility that democracy is only justified where it proves to also be good government.
    
    98 This chapter explores what it is to treat people equally and argues that majorityrule is not necessarily fair under certain conditions, such as when there is a permanent majority-minority split254. Instead, an alternative account of fairness between competing claims is developed, starting from tossing a coin between two people and culminating in weighted lotteries between unevenly-sized groups. Thus, where we have a conflict between four and two people, rather than the four automatically winning, the fairest solution is to give them a two-thirds chance of getting their way. This does not give each individual an equal chance of satisfaction, but it does give each an equal chance of being decisive, and mean that each person is considered equally in the decision procedure. The next chapter develops how the fairness of weighted lotteries can be institutionalized within a democratic framework; for now, the focus is more abstract.
    
    (3.2) The Uses and Abuses of Lotteries Lotteries have a long history of use in conflict resolution, going back at least to the ancient Greeks255 and also being used in Biblical times256. While sometimes their use seemed to rely on superstition – divining the will of God, or at least taking the judgement out of human hands – they can also be justified on grounds of fairness to each participant – giving each an equal chance and removing any bias. In recent times, lotteries seem to have earned a bad reputation, both in public discourse and to some extent in academic discussion. In both cases, however, this seems to be largely due to misunderstanding. Newspapers, for example, frequently
    254
    
    C.f. Guinier (1994) pp.1-9, which points out that rules that are fair in the abstract may turn out to be exclusionary in practice – for instance, in racially divided communities. 255 Goodwin (2005 [1992]) p.53-4 256 Acts 1:15 and Jonah 1 (the latter is found in Goodwin (2005 [1992]) p.52). For other cases, see Elster (1989) pp.50 (Proverbs 16:33), 52 (Num 26:52-6 and Josh 7), 64 (Acts 1:26 and Num 26:52-6 and 33:54), 66 (Lev 16:7-10 and Jonah 1:7), and 69-70 (St John 19:23-4).
    
    99 condemn inequalities between different local jurisdictions, such as healthcare trusts, as a ‘postcode lottery’257. Similarly, the use of penalty shootouts to decide football matches is often branded a lottery – the claim being that the winner becomes a matter of luck – usually with negative connotations258. Rawls’ attack on the ‘natural lottery’ shows a similar strand of thinking in academic debate259. However, what is wrong is that none of these examples are actually lotteries260. The fact is that postcodes are not allocated by lottery, so nor is access to any good or burden that is allocated by or dependent on where one lives. Not only does it seem unjust that those living on one side of an arbitrary boundary may have access to a drug or treatment denied to those on the other side261, but there is also the problem that the wealthy may be able to buy houses where they have better access to medical provisions, in good school catchment areas, and so on. Even the so-called ‘natural lottery’ is not a real lottery – since it determines people’s identities, so there is no continuous person, before and after the draw, who enters and may receive benefit262.
    
    257
    
    For example: O’Neill, Gibb and Brooke (2005) [criminal conviction rates], Anonymous (2006) [selecting doctors], Malkin (2006) [asylum applications]. Typing “postcode lottery” into Google.com produces about 346,000 results (as of 15/04/07), including an actual (partly) post-code based lottery (http://www.postcodelottery.co.uk/). 258 This claim is often made, e.g. Wilson (2007), http://blogs.guardian.co.uk/sport/2007/03/17/better_the_bore_draw_than_the.html (last accessed 17/04/07), and http://news.bbc.co.uk/1/hi/euro2000/sportstalk/812927.stm (last accessed 17/04/07); although those in the know do deny it, e.g. http://www.soccerphile.com/soccerphile/news/penaltyshootout.html (last accessed 17/04/07) and http://www.smsc.org.uk/resources/penalties.htm (last accessed 17/04/07). 259 Rawls (1999 [1971]) e.g. p.64. 260 This claim depends on the nature of lotteries. I believe we can use unpredictable natural events as lotteries, e.g. if an expectant couple agree that the father will name the baby if a boy and mother if a girl, and appropriately call this a lottery. Postcodes are not lotteries because where one lives depends on choice and, often, money. Penalty shootouts might be considered a lottery on this expansive definition, but I do not think they are because they are part of the game. Settling a football match by tossing a coin would be a lottery. Settling it by, say, a chess match would also be a lottery, because it arbitrarily uses something irrelevant to the game in question. Penalties are not a lottery because they are part of the game and the specified way of breaking ties in specified circumstances. 261 This does to some extent neglect the fact that as different authorities distribute their budgets differently the results are likely to be Pareto-noncomparable. Also the worry is rarely extended to international boundaries. 262 Hurley (2003) ch.4, esp. pp.117-21, and Heyd (2000) p.65.
    
    100 Actual lotteries in fact have been used for a number of these purposes, such as allocating scarce medical resources263 or deciding football matches264. They have also been used or recommended from everything from the extremely trivial265, to tickets for events including Wimbledon and the Oscars266, school or university places267, broadcasting licences268, land allocation269, immigration visas270, the military draft271, and spaces on lifeboats272. There have also been many actual or suggested political uses, to which I turn in the next chapter273. While some of these uses have been criticized, the widespread practice also suggests that many have found them fair or an intuitive solution to conflicts where neither side has a greater claim than the other to the good in question.
    
    263
    
    Duxbury (1999) pp.45, 49 and 151, Goodwin (2005 [1992]) p.211, Elster (1989) pp.68, 70 and 734, Broome (1984b) p.39. 264 Elster (1989) p.63 notes some peripheral uses, such as which team plays first or choice of new players. More interesting is the use of lotteries to settle ties: in the European Cup, before the days of penalty shootouts, quarter finals between Liverpool and Cologne (1965) and Celtic and Benfica (1969) both went to coin tosses. For the former, see Anderson with Done (2004 [2002]) p.80; for the latter see McColl (1998 [1995]) p.96 and http://news.bbc.co.uk/sport1/hi/football/teams/c/celtic/6100458.stm (last accessed 10/04/07). In both cases, the method was criticized. C.f. Duxbury (1999) pp.43-4 fn.3. 265 The website http://www.teaoclock.co.uk/ will randomly select an office member whose turn it is to make a cup of tea for the office (last accessed 10/04/07). This does seem to confuse a lottery (random selection) with turn taking, but strict turn-taking may be impossible where the group is not constant (see the similar problems discussed in chapter 4.6), so a lottery seems a fair solution. 266 Duxbury (1999) p.45. 267 A (weighted) lottery is already used for medical school in the Netherlands, see Duxbury (1999) p.45 and Elster (1989) pp.47-8. Lotteries have been proposed for university places, e.g. Brighouse (2000), c.f. the discussion at http://crookedtimber.org/2005/09/29/lotteries-in-admissions-to-academies/ (last accessed 15/04/07), Ryan (2000) and (2007), and Schwartz (2007). The introduction of a lottery for school places in Brighton in February-March 2007 caused much controversy; see Andalo (2007), Laville and Smithers (2007), Paton (2007), Oberman (2007), and Garner (2007). I think the negative response may partly have been due to the general bad press of lotteries (see the previous paragraph), but also worries about how catchment areas would be drawn (including self-interested bias of those – predominantly rich – parents living near the good schools). 268 Duxbury (1999) pp.45 and 151-2. 269 Goodwin (2005 [1992]) p.54 [discussing Biblical, Athenian and Roman uses], Duxbury (1999) p.44. 270 Elster (1989) p.56, fn.63. 271 Greely (1977) p.115, Elster (1989) p.64, Broome (1984b) pp.38-9, Duxbury (1999) pp.65-7, 100, 131 fn.195 and 154-5. 272 Broome (1984b) p.38, Goodwin (2005 [1992]) p.53, Elster (1989) pp.64-6 and 75-6. 273 Chapter 4.2-3.
    
    101 (3.3) Justifications of Lotteries I cannot, here, give a full justification for the use of lotteries – to some extent, their fairness is taken as a given – but I will begin with a few remarks on their justification, before turning to how lotteries can be used between competing unequally-sized groups. Broome regards lotteries as a ‘second best’ or providing “a surrogate equality in satisfaction”274. Rawls also suggests that, in cases of conflict: “[A]ll shall be satisfied equally, if that is possible… [or] an impartially arbitrary method of choosing those to be satisfied shall be adopted… Imagine a good of such a nature that it is impractical or impossible to divide it, and yet each of a number of persons has an equally strong claim on its possession or exercise. In such a case we would be directed to select one claim as meriting satisfaction by an impartially arbitrary method, e.g., by seeing who draws the highest card… [This] is impartial because prior to the drawing of the cards each person has an equal chance to acquire in his person the characteristic arbitrarily taken to be relevant”275 The ideal solution is an equal satisfaction of equal claims. Sometimes this will be possible, when interests do not conflict, and all can be satisfied. Where two people have equal claims to a non-divisible good, however, the only way to respect absolute equality is for neither of them to have the good276, but this is clearly sub-optimal – we may regard this as levelling down277 and assume neither would want to accept it. If we prefer inequality at a higher level, as recommended by the difference principle278, then we should want to give the good to one of the individuals in question, rather than waste it. Given that ex hypothesi each has an equal claim to it, the contentious issue is which of them to give it to. Again, equal chances of satisfaction are used as a surrogate for equal satisfaction itself – each person’s claim is still respected and treated equally, though only one will in fact get the good.
    274
    
    Broome (1998) p.956; c.f. Broome (1984a) p.628, Broome (1984b) pp.40 and 45-6 and Broome (1999) p.119. 275 Rawls (1951) p.193. 276 Broome (1998) p.956. 277 Parfit (2000 [1991]). 278 Rawls (1999 [1971]) e.g. pp.69-72 and 135-7.
    
    102 This has led to criticism from some that there is no reason for a lottery because parties do not have a claim to a chance, but simply to the good in question279. Nonetheless, we cannot always distribute the ultimate objects of concern – even those who advocate equality of (opportunity for) welfare must, as a practical measure, focus on redistribution of tangible resources to achieve their end, for example. Moreover, what people have a claim on others for, as a matter of justice, need not be what they actually want – as in Scanlon’s famous example of the religious fanatic who would rather have help building his temple than food280. The mere fact that what someone wants is the good in question, rather than a chance for it, does not show that, where we have no other option – beyond giving it to neither281 – there is anything wrong with allocating chances. It could be regarded as controversial whether those given a chance that did not come up benefit, but I can remain agnostic on this provided it is accepted that they would rather have the chance of benefiting, even if they did not in the end do so, than not. One way in which people can be given equal opportunity is if the good is attached to some position of merit that each of them is equally able to attain. This is how jobs – with their attendant status and salary – are ideally distributed, to the most deserving candidate. Sometimes, however, no criterion of merit is clearly applicable, or use of some such standard, e.g. educational qualification, does not provide equal opportunity because parties were unequally situated when they came to compete. An alternative form of equality is provided by a lottery. Here the good is attached to some arbitrary criterion – such as heads on a coin, or a number drawn from a hat – that each party has an equal opportunity of satisfying282. If two parties have equal but
    
    279 280
    
    Hirose (2007) pp.54-5. Scanlon (1975) pp.659-60. 281 Broome (1998) p.956. 282 Rawls (1951) p.193.
    
    103 conflicting claims, it is likely that they will agree to something like tossing a coin to resolve them. Actual agreement, however, is not necessary – that may not be forthcoming for various reasons, such as unequal bargaining positions leading one person to think she can seize the good. What matters is that reasonable people would agree to such a procedure, so it should be taken as fair. This shows that there is a difference between the ‘natural lottery’ and an actual allocative lottery, because the former does not give concrete individuals equal chances. It has been claimed that some forms of contractualism cannot justify employing an actual lottery283. Harsanyi, for instance, assumes that our ‘ethical preferences’ over social states are those that we would adopt if we imagined we had an equal chance of being anyone in that state284. This is effectively to adopt the stance of an ‘impartial spectator’ and so produces utilitarian conclusions in which the gains to one person can be added to, and weighed against, losses to another. It is unsurprising that such an account has little space for fairness. If we count each party’s satisfaction or dissatisfaction equally, it seems a matter of indifference which of them gets a given good, so there is no need for a lottery – such would be justified only as a low cost way to resolve the matter (seeing the problem as like that of Buridan’s ass, rather than resolving conflicting claims) or if one or both parties preferred to win or lose through such a process. In principle, however, the ‘natural lottery’ could be employed to determine the distribution – for instance, the good could be allocated to the tallest person, on the grounds that all would accept this if they regarded the tallest person’s preferences equally with their own or assumed that, from some pre-birth position, they had an equal chance of being the tallest person.
    
    283 284
    
    Stone (2007) pp.290-1. Harsanyi (1953) p.435 and (1955) pp.315-6. Hurley (2003) pp.263-7 criticizes ‘equal chance’ procedures for allowing cognitive bias.
    
    104 This illustrates one potential problem with ‘veil of ignorance’ or ‘original position’-type reasoning, as employed by John Rawls285. What seems fair behind the veil – to one in ignorance of their eventual position in society – need not still seem so once it is lifted and they are aware of their actual personal attributes. Parties in the original position might be rationally indifferent between settling a dispute by tossing a coin or by an arm wrestling contest – since neither knows who will be stronger, neither has any greater or lesser expectation from the latter procedure. The reason that tossing a coin is preferable to arm wrestling is that it still seems fair once the parties are situated and aware of their identities, whereas the outcome of an arm wrestling contest may seem predictable and hence no longer fair. If Mike Tyson suggests an arm wrestling contest to Steven Hawking, for example, then the fact that both may have accepted such from an original position no longer seems relevant, because it is clear which of them, as actually situated, will win. This difference seems captured by the stress Rawls places on the ‘strains of commitment’286, though we can by-pass the need for such by simply appealing, like Scanlon, to reasonable agreement from the start. My argument will be that, whatever form of contractualism we endorse, majority-rule faces an analogous problem to arm-wrestling. While it may seem fair to all from some a priori original position where no one knows whether or not they will be in the majority or minority, it may not seem so to particularly situated individuals, who find themselves in a permanent minority and can reasonably foresee defeat287. If we take it for granted that the way to adjudicate between two persons’ competing claims is to toss a coin, or hold some other equal chance lottery between
    285
    
    Rawls (1999 [1971]) pp.118-23. Of course, I do not mean to imply that Rawls would use such a procedure to decide this case of conflict between two individuals – his contractualism is designed to govern the basic structure of society. 286 Rawls (1999 [1971]) pp.153-4, and 475. 287 Again, Rawls’ response would presumably be to say that the design of democratic institutions is a matter for the constitutional convention – Rawls (1999 [1971]) pp.172-4, 203, and 311-2 – where such facts about society are known.
    
    105 them, then this also seems fair when there are two larger equal-sized groups, for instance deciding between two groups of five. The more interesting question is what to do when there are unequal numbers on either side. Here I turn to the possibilities suggested in the course of another debate, between consequentialists and deontologists.
    
    (3.4) The Numbers Debate We need some account of what it is to treat two different groups equally. Surprisingly, this question seems under-addressed in the democratic literature – although a few do suggest the need for some form of proportional compromise, there are fewer institutional specifications for how this can be brought about. There has, however, been much written about the analogous ‘saving the greater number’ debate in recent moral philosophy. Here, the debate is about what a rescuer should do if they could save either of two differently-sized groups from some loss, typically death. While the utilitarian answer is obvious – all else being equal, save the greater number – many deontologists have opposed aggregation of benefits and harms across distinct persons on the grounds that it can yield intuitively unappealing consequences, such as that enough people’s mild discomfort can outweigh one person’s severe pain or death. These anti-aggregationists have typically invoked the separateness of persons to argue that benefits and pains to distinct individuals are not felt by any social super-organism and cannot be summed. The question then becomes whether, given this individualist restriction, they can still deliver intuitively acceptable solutions to cases where harms
    
    106 are equal and numbers differ – or, as one journal article title put it, ‘Can NonConsequentialists Count Lives?’288. This debate offers what is needed here, because it concerns the fairest way of adjudicating claims between competing groups while putting aside utilitarian considerations. Scanlon, for instance, tries to defend saving the greater number, based not on the alleged betterness of doing so, but on the fairness to each of deciding in this way. If his argument succeeds, then it seems one could give a closely analogous argument for the fairness of majority-rule when two groups have conflicting preferences about social arrangements. However, Scanlon’s arguments have been widely criticized and it will be argued here that they do not succeed or, at least, rely on doubtful assumptions. There have been two other common positions taken in the debate: a simple lottery (equal chances to each group) and a weighted lottery (in which the chances for each group depend on its size). I will argue that the latter best respects each person, and in the next chapter I develop a theory of democracy from this starting point. First, a few remarks on the appropriateness of the analogy. Taken in the abstract, the debate is how to treat the opposing claims of, say, one person and five others fairly. This is exactly what is at issue when we have conflicting interests in a vote. Note that overall utilitarian reasons are set aside. Taurek, for example, denies the legitimacy of any impersonal judgement. He argues that one outcome is better for the one, and the other better for the five, but no more can be said about which is ‘impersonally better’. These assumptions may be hard to accept in general, but they are actually more reasonable in our democratic context. The previous chapter showed that votes do not necessarily reveal social good, because all concerned are given equal
    
    288
    
    Wasserman and Strudler (2003).
    
    107 votes, even though preferences may differ. If the issue at vote is a zero-sum distributional one, for instance, then ex hypothesi neither option is objectively better – the winners collectively gain only what the losers lose. Indeed, in such a case, because the same total loss is shared amongst fewer people, each of the losers loses more than each of the winners wins. In this case, a pairwise comparison principle, such as Scanlon’s, that compares only individuals gains or losses without regard to the numbers on each side, would actually favour minority rule. Moreover, even if Taurek’s scepticism seems exaggerated, because we are sometimes able to make uncontroversial judgements between two social states, it was argued above (in chapter 2.8) that these comparisons would generally be vague or indeterminate – thereby admitting cases that cannot be resolved by appeal to social good. Further, note that while the ‘saving the greater number’ debate has frequently proceeded in terms of who to save from death, nothing special is supposed to follow from the fact that lives are at stake. It applies in principle to any losses borne by distinct individuals, e.g. the loss of arms or distribution of ice cream289. Moreover, I am not the first to consider the possibility of extending this discussion to conflict of votes rather than objective interests. Several in the debate suggest looking at preferences, rather than assuming everyone wants to be saved290 – but I am, I believe, the first to explore it in more detail.
    
    (3.5) Taurek’s Argument for Equal Chances John Taurek’s central claim is that there is no obligation to save the greater number in cases of conflict. He argues that five people dying does not involve anyone
    289 290
    
    Taurek (1977) pp.301-2, Kamm (1985) p.188, fn.9. Taurek (1977) pp.310-4, especially p.314, Kamm (1985) p.181, Wasserman and Strudler (2003) p.81, fn.18 and p.92, fn. 33. The only reference to the ‘numbers debate’ that I am aware of in the democratic literature is Risse (2004) p.50, fn.22.
    
    108 suffering anything worse than a death – we cannot add these separate harms and claim that anyone suffers more bad, because no individual suffers anything worse than death. Indeed, Taurek suggests that – at least in conflict cases – we cannot make some impersonal judgement about which state of affairs is better291. Where our alternatives are to save one person, whom he calls David, or five others, then all we can say is that the first is better for David while the second would be better for the five; we cannot say anything beyond these individual viewpoints. It is not clear how far Taurek’s scepticism goes about the ‘view from nowhere’. He could still make his arguments while accepting that, if in a non-conflict case, it could be judged simply worse for someone to die, since that situation is worse for one and better for no one. Further, he does accept that there are in fact cases where one person should suffer a loss to save others – for instance, David may be required to bear a hangnail in order to save five (or just one) other lives – though it is unclear whether he would want to describe these outcomes as better. Though Taurek would judge David blameworthy, or at least somehow defective, for preferring to avoid his own mild discomfort in such cases, it is because neither of the life-saving situations is all-things-considered better that David can permissibly prefer his own life be saved292. The general argument has certain libertarian features, for instance Taurek places great emphasis on the absence of any prior contract, the right of the rescuer to do what he wants, and the question whether anyone is wronged293. His conclusion is that it would be quite permissible for the rescuer to save David, based merely on a mild preference – David being someone he ‘knows and likes’, which seems to presuppose
    
    291 292
    
    Taurek (1977) pp.299-300, and 304. Taurek (1977) pp.302, and 305. 293 Kavka (1979) p.288ff. C.f. Taurek (1977) pp.297, and 305. Note Taurek sets aside – but does not reject – the claim that someone should be saved (p.293 fn), whereas a Nozickian would presumably accept the conclusions Kavka derives, e.g. that the rescuer can eat the drug himself because it tastes nice, Kavka (1979) pp.289-90.
    
    109 that the rescuer can do what he likes with his drug subject to not violating anyone’s negative rights. The more interesting claim, for our present purposes, however, is that if the rescuer wants to be fair, he should toss a coin294. Taurek has already argued that the numbers do not count for anything, and neither outcome is objectively better. Thus, the situation in the five-against-one conflict is in no important way different from the one-against-one conflict: tossing a coin gives each person the same thing, a 50% chance of survival.
    
    (3.6) Scanlon’s Objection to Equal Chances Although several criticisms were made of Taurek’s argument, it was Scanlon who largely revived the debate on aggregation and numbers, by trying to justify saving the greater number given the individualist restriction of his contractualism295. Scanlon accepts the fairness of tossing a coin between two people’s competing claims296: that is something that, in the absence of other means of resolution, no reasonable person could reject. He argues, however, that something changes when more people are involved – that it is no longer fair to toss a coin because it does not consider all people’s claims. Let us illustrate with Taurek’s David, and call the other five A, B, C, etc. In the one-against-one case (David against A), tossing a coin gives each an equal chance of being saved. Now add B to A, so we have a two-against-one case. Tossing a coin still gives each individual a 50% chance of being saved but, Scanlon claims, B can complain that her claim is not duly considered because it has made no difference to how the matter is decided – that is, to still toss a coin is
    
    294 295
    
    Taurek (1977) p.306. Scanlon (1998) 229-30ff. 296 Scanlon (1998) p.232.
    
    110 effectively to ignore her presence297. This, he claims, allows B to reasonably reject tossing a coin as a way of resolving the two-against-one conflict. This objection does not seem convincing. Firstly, it has been criticized for being implicitly aggregative, because B’s claim only outweighs David’s if taken together with A’s298. If this is so, then Scanlon seems to have neglected his individualist restriction. More importantly, however, it is not clear whether B can justifiably complain that she is not counted. After all, as Taurek would point out, her interests are taken into account in exactly the same way as those of David and A, i.e. she is given a 50% chance of survival299. Moreover, one could say that the procedure is no longer exactly the same as it was: instead of tossing a coin between David and A, the rescuer is now tossing a coin between saving David or saving A and B. To assess B’s complaint, we need to know what difference B’s claim should make. One interpretation of making a difference is that the presence of B’s claim must lead us to change the basic decision procedure, e.g. from coin-tossing to saving the greater number. This, fairly clearly, cannot be what is meant, as there are only finite possibilities and, once we are already committed to saving A and B, the presence of C alongside them cannot make any further difference – unless it were perversely to change us back to coin-tossing or a weighted lottery! Presumably what Scanlon means is that each extra claim should be taken into account within the procedure. This is most clearly seen in the case of weighted lotteries that proportion the chances of each group to their numbers300.
    
    297 298
    
    Scanlon (1998) pp.232-3. Otsuka (2000) p.291, Timmermann (2004) p.110. 299 A point made by Otsuka (2000) p.291 and Otsuka (2006) p.115. 300 Technically the proportionately weighted lottery is only a special case of the more generally weighted lottery – for giving the five people a chance between 51% and 99% would be to accord them greater weight. In what follows, I assume proportional weights unless specified otherwise.
    
    111 (3.7) Scanlon’s Argument for Saving the Greater Number Scanlon thinks that, if each person must make a difference, this is enough to reject coin-tossing. He also thinks he can reject weighted lotteries, which he admits do respect each equally301, on independent grounds (see 3.10, below). His argument for saving the greater number must therefore have two parts. Firstly, he has to show that each person does ‘make a difference’, in the way that he requires and that cointossing fails to satisfy, on the saving the greater number policy. Secondly, he must have some other reason to reject weighted lotteries. Scanlon rejects coin-tossing because the presence of B makes no difference. It is easy to see how B does make a difference if the rescuer saves the greater number – because by changing the situation to one where there is a greater number, rather than a tie, B now obligates the rescuer to abandon David and save the two. But does this generalize? Suppose we now add person C, alongside A and B. Intuitively, C’s presence makes no difference – one was already required to rescue A and B, and now one is still required to save A and B, as before, but also C. Of course, one may point out that it would be unwise of C to press this complaint – after all, as things stand, he is to be rescued anyway, even if only on account of being with A and B. Were C to demand a procedure that took account of his life, the result might be to adopt a weighted lottery, which in this case would give him only a 75% chance of rescue rather than certainty of such. Admittedly, then, it would not be prudentially wise for C to complain, but Scanlon is committed to the position that what we are entitled to as a matter of right is not always what we would subjectively prefer – for example, we are entitled to food rather than help building a temple for our god, even if we
    
    301
    
    Scanlon (1998) p.234.
    
    112 would go without food to build that temple302. Therefore, if all C is entitled to is to be counted, then the fact that he would prefer to be rescued does not matter – after all, everyone would prefer that, which is what generates the conflict to begin with. At least in C’s case, being saved would seem to compensate for not being counted. Now suppose, however, that as we are about to rescue A, B and C, we notice another person – D – alongside David. Now surely his claim is ignored. If we still proceed to save the larger group, it does not matter whether the case was three-against-one or three-against-two. It seems the only way in which Scanlon can say these people, C and D, do count is hypothetically. For instance, had B not been with A, then C’s presence would have been enough to break the tie with David – and, in that case, D would then have reestablished the tie against A and C. So it is not that each person must actually make a difference, because they might already be out-weighed by others, but had the numbers been otherwise they could have made or broken a tie. But if this is all Scanlon means by making a difference, it is not obvious that he can use the claim to reject the equal chances procedure. Return, for example, to his original case of adding B to the A against David conflict. Scanlon thinks, if we still toss a coin, B can complain of making no difference. But the defender of coin-tossing can now say to him ‘Of course, with the numbers as they are, you did not actually make a difference, but don’t you see how you could have made a difference? Had A not been there then, instead of simply saving David, we would have been obligated once more to toss a coin. That is, you would have created a tie’. Scanlon’s criticism of equal chances fails, on an ad hominem basis, because he cannot find a sense of ‘making a difference’ on which saving the greater number does
    
    302
    
    Scanlon (1975) pp.659-60.
    
    113 allow each to make a difference but equal chances do not. But this does not mean that equal chances are vindicated from the original charge. It might rather be that saving the greater number is equally condemned, because individuals only make a difference when the numbers are already close – extra people added to either side of an already very uneven contest are practically irrelevant. If this is so, then we should turn to the remaining policy – the weighted lottery – to see why Scanlon rejects that (see 3.10, below). We must begin, however, with the positive case for such a procedure.
    
    (3.8) The Weighted Lottery: Pooling Chances Technically a weighted lottery is any random procedure that gives the larger group a greater chance – for instance, in a three-against-one conflict that could range from giving the three a 51% to 99% chance. Here, however, I shall use the term to mean more specifically a proportionately-weighted lottery, that is one that assigns chances to each group in proportion to numbers, so in the four cases discussed earlier303: the chances alter each time from 50/50, to 33/67, to 25/75, to 40/60. It is easy to see how each person counts equally, contributing a 1/n chance to their group. Admittedly, each extra person added reduces the significance of every person – by the end, each person has only a 20% individual claim – but this is simply the result of total chances being shared between more people, just as dividing a cake between more people results in smaller slices. The basic idea is that each person has some individual baseline chance (one over n), coupled with the intuition that it is permissible for them to pool these chances – so in the three-against-one case the three have a 75% chance of all being saved, as opposed to each having just a 25% chance. Timmermann represents this with a wheel of fortune, supposing each individual
    303
    
    Respectively: 1 David vs. A; 2 David vs. A&B; 3 David vs. A&B&C; 4 David&D vs. A&B&C.
    
    114 occupies an equally-sized slice, and the would-be rescuer spins the wheel to decide which one person they should save – only to then later acquire secondary obligations to save those others they can, once the situation is no longer one of conflict304. This clearly does respect Scanlon’s individualist restriction, and each individual is given an equal chance of being the one chosen, even if they have de facto different chances of actually being saved. It is this difference in actual prospects that has motivated some criticisms of pooling chances305. Timmermann seems to suppose the wheel is divided into four quarters, the first assigned to David and the other three each to A, B and C respectively. But why, one could ask, must these chances be exclusive? Having put David and A in the first two quarters, when it comes to placing B – giving her a 25% chance – why can one not do that by putting her in the same quarter as A? Since, if that second quarter comes up, both will be saved, this seems to respect both persons’ 25% chances. Then, the same reasoning would have it, we can do the same with C. The result is the first quarter of our wheel tells us to save David, the second quarter to save A and B and C and the third and fourth quarters are unallocated. The result is equal chances between the two unequal groups, plus some wasted chance. Since we presumably want greatest equal chances, we should now abolish this wasted section, and increase the first two quarters to halves, which effectively takes us back to tossing a coin. I think there are two answers to this. The first takes us down a slightly longer and more complex route, which I will develop in the next section. This is not, however, essential to my overall project. The second is simply to accept equal chances as one possible fair procedure, but claim that we can reject it on democratic
    304 305
    
    Timmermann (2004) p.110. Hirose (2007) pp.49-50.
    
    115 grounds because individuals do not make any difference and, in the political context, it would be prone to manipulation. I return to this in section 3.9, below; but first, the longer response.
    
    (3.9) Re-constructing the Fairness of a Weighted-Lottery As well as criticizing the weighted lottery for giving individuals unequal de facto chances of being saved, Hirose also points out that – as described by Timmermann – it could actually lead to an inverse lottery if the rescuer responds to his dilemma by randomizing who not to save and then reasoning similarly306. That is, if they draw A as not-to-be-saved, they realize that they cannot now save B – for to go that way will obligate them to save A too – and so they end up saving David with a two-thirds chance. However, his first criticism was that the de facto unequal chances of being saved only arise because of the assumption that we must save A and B together – whereas to give each a true one-thirds chance might require that we, for example, saved A but left B. If we don’t assume that A and B must be saved or left together from the start, though, then – contrary to the second objection – we don’t get an inverse-lottery. Instead, having picked A as not-to-be-saved, we still face a choice between David and B. Then we must flip a coin between David-alone and B-alone. On this view, we can save B-alone, as A has already been cons