A multidimensional account of democratic legitimacy: how to make robust decisions in a non-idealized deliberative context

Abstract

This paper analyses the possibility of granting legitimacy to democratic decision-making procedures in a context of deep pluralism. We defend a multidimensional account according to which a legitimate system needs to grant, on the one hand, that citizens should be included on an equal footing and acknowledged as reflexive political agents rather than mere beneficiaries of policies, and, on the other hand, that their decisions have an epistemic quality. While Estlund’s account of imperfect epistemic proceduralism might seem to embody a dualistic conception of democratic legitimacy, we point out that it is not able to recognize citizens as reflexive political agents and is grounded in an idealized model of the circumstances of deliberation. To overcome these ambiguities, we develop an account of democratic legitimacy according to which disagreement is the proper expression of citizens’ reflexive agency and the attribution of epistemic authority does not stem from a major expertise or specific ability, but it comes through the public confrontation among disagreeing agents. Consequently, the epistemic value of deliberation should be derived from the reasons-giving process rather than from the reference to the alleged quality of its outcomes. In this way, we demonstrate the validity of the multidimensional perspective of legitimacy, yet abstain from introducing any outcome-oriented criterion. Finally, we argue that this account of legitimacy is well suited for modeling deliberative democracy as a decision-making procedure that respects the agency of every citizen and grants her opportunity to influence public choices.

Keywords:

• Democratic legitimacy
• Estlund
• disagreement
• agency
• epistemic peerhood

Acknowledgments

This paper was originally discussed during the Workshop ‘An Inclusive Polis: Values, Procedures and Policies’, held in Torino and Vercelli in April 2014. A revised version was then presented at The Association for Social and Political Philosophy 2015 Annual Conference, University of Amsterdam. We want to thank the audience at both the conferences for their valuable comments.

Notes

1. For example, there is an opposite traditional account of democracy according to which democratic systems should promote the common good – that is, what is in the interest of every citizen.

2. For an analysis of the flipping-the-coin objection, see Estlund, 1997. Limits of purely procedural conceptions of democratic legitimacy are pointed out by Habermas, 1996.

3. Clearly this interpretation of democracy cannot be substituted by a random selection, unless it is possible to show that a democratic procedure has a less-than-random chance of identifying the correct solution to a given problem.

4. For an analysis of the deliberative paradigm see Bohman (1996), Bohman and Rehg (1997), Cohen (2009) and Dryzek (2000).

5. Though Estlund’s epistemic proceduralism is not the only multidimensional account of deliberative legitimacy, we believe that it is important to consider it for at least two reasons. First, unlike other conceptions (Cohen, 2009; Habermas, 1996; Landemore, 2013; Martì, 2006), it explicitly holds that a deliberative decision-making process is legitimate if it grants both procedural and instrumental standards without explicitly acknowledging any priority to one of these dimensions or claiming that they are reciprocally independent. Second, this view provides the standard outcome-oriented interpretation of the epistemic property of deliberation. Since our aim in this paper is to hold that deliberative legitimacy needs to ensure a balance between procedural and epistemic dimensions, but averting any outcome-oriented analysis, debating Estlund’s epistemic proceduralism seems to be particularly appropriate.

6. On the same line, Peter (2007, p. 341) claims: ‘In this light, Estlund’s project can be characterized as an attempt to reconcile, within the conception of democratic legitimacy, a nonconsequentialist concern with fair procedures with a consequentialist concern with truth-tracking’.

7. Rawls (1999, p. 75) holds that ‘a trial, then, is an instance of imperfect procedural justice. Even though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome. An innocent man may be found guilty, a guilty man may be set free.… The characteristic mark of imperfect procedural justice is that while there is an independent criterion for the correct outcome, there is no feasible procedure which is sure to lead to it.’

8. To confirm that this model of democracy considers the jury as a paradigmatic example of a legitimate decision-making procedure, it is worth noting that deliberative panels and other deliberative innovations involve citizens who, like members of a jury, have to make a decision on a specific issue.

9. As clearly stated by Josè Martì (2006), it is quite common to assume that any account of deliberative democracy needs to be grounded on these two theses.

10. To corroborate this point, it is worth noting that Estlund (2008, pp. 24–36) does not criticize epistocracy because is a model for determining political decisions that runs afoul with the procedural ideal. Rather, he states that, since there are not perfect, and unanimously accepted, procedures to identify the wisest, then epistocracy should be ruled out from the available set of options for collective choice, for epistemic reasons.

11. For a wider analysis of this topic see Peter (2008, 2013b)), where the author describes dissent as a central aspect of a prima facie argument in favor of democracy.

12. Rawls (1993) claims that a good and exhaustive theory of justice should look at the actual circumstances of justice in order to check whether principles of justice are actually compatible with the non-ideal circumstances of political life. Along the same lines, in this work we try to assess the validity of a multidimensional account of democratic legitimacy against the actual epistemic circumstances of political deliberation.

13. For further analyses see Brink (1989), Feldman (2002), Turri (2010).

14. Epistemically justified beliefs are ones it is reasonable or rational to believe. Epistemic warrant is whatever, when added to truth and belief, makes knowledge. Knowledge is true, epistemically warranted belief. (Markie, 2010, p. 72)

15. For a more technical analysis of the relationship between a fallibilist account of moral knowledge and a general paradigm of justification in political theory, see Liveriero (2015).

16. The normative constraint of public justifiability plays a fundamental role in our argument against the possibility of referring to a non-doxastic standpoint while trying to overcome political disagreement through deliberation. Indeed, we believe that the reference to an external authority – independent from the doxastic perspectives of the members of the constituency – will hardly lead to a result that is publicly justifiable for all the members of the constituency, and therefore such strategy will not solve the disagreement, because it will fail to meet the acceptability test.

17. Estlund himself identifies ‘the problem of deference’ (2008, p. 102) among the main challenges for epistemic theories of legitimacy of deliberative systems. A theory of legitimacy that accounts for an epistemic validity of deliberative decisions should still be able to distinguish between members of minorities acknowledging democratic authority, and being compelled to surrender their opposing judgments to the political decision.

18. By qualified deep disagreement, we mean a situation in which two agents hold two mutually incompatible beliefs, such as p and ~p, and they both have good reasons, given their doxastic system of beliefs, to hold the belief they do.

19. In the literature, the two most debated strategies are the Conciliatory View and the Steadfast View. According to the Conciliatory View (Christensen, 2009; Elga, 2007), the fact that an epistemic peer disagrees with me is a good reason to ‘bite the bullet’ and revise my belief in the attempt to find a middle ground between our opposite beliefs. By contrast, the Steadfast View (Kelly, 2010) claims that, given the fact that there is not a way to appeal to an external, independent, epistemic authority for solving the disagreement, and given also the fact that I have good epistemic reasons to trust my beliefs as long as they are mine, the best doxastic response is to ‘stick to my own guns’ and demote the other party’s epistemic position.

20. For an exhaustive analysis concerning the normative requirement of intellectual modesty that should be included within the liberal ideal of citizenship, in order for agents to be able to abide by deliberative constraints, see Leland and van Wietmarschen (2012).

21. A caveat is here required. It is not our intention to claim that the possibility to approximate at best the right political decision has no value for determining the desirability of deliberative-democracy models. Yet, we have been providing both epistemic and procedural arguments against the adequacy of an outcome-oriented approach in defining the epistemic virtue of deliberation. Consequently, we maintain that the approximation to the best choice available for a political constituency is still a desirable outcome for a well-developed deliberative system, and yet we argue against the possibility of granting the epistemic legitimacy of deliberative procedures on such ability of approximating the best choice.

22. For an exhaustive analysis of responsiveness as an intrinsic property of the democratic procedure, see Urbinati and Saffon (2013).

23. Robustness across different perspectives captures the proper epistemic aim of deliberative processes that attempt to resolve deep disagreements. It also offers a measure of epistemic success for those democratic practices of inquiry based on the deliberation of all citizens. (Bohman, 2006, p. 188)

24. Robustness is an epistemic notion according to which a ‘theory T1 is robust vis-a-vis T2 to the extent that changes in T2 – including the total rejection of T2 in favor of some competing theory T2’ – do not weaken the justification of T1. Robustness is to be contrasted with sensitivity; to the extent that the justification of T1 is affected by changes in T2 T1 is sensitive to T2’ (Gaus, 1996, p. 6).

25. Our view, though less idealized than other perspectives, might still be criticized as a too ideal model, especially in contexts of deep injustice. As correctly pointed out by an anonymous reviewer that we thank for helpful comments, disagreement can be described as the proper expression of critical reflexivity if citizens are fully empowered. Yet, dissent can also be a factual proof of structurally unjust situations in which minorities have not been acknowledged as reflexive epistemic peers, because they are victims of epistemic forms of injustice (See Fricker, 2007). We agree that our model of legitimacy, even though appealing to actual non-ideal circumstances of deliberation, still requires political contexts in which a minimal threshold of justice is reached. To ensure that citizens can freely disagree, while still respecting each other as epistemic peers, a minimally fair basic structure should be granted.