Daniel Viehoff

Many citizens of liberal democracies are both wedded to fundamental tenets of liberal political morality and robustly committed to democracy. (They are robustly committed to democracy just insofar as they would, within certain limits, prefer living under instrumentally suboptimal democratic institutions to living under instrumentally superior non-democratic ones.) Recent liberal arguments for instrumentalism about democracy, advanced most prominently by Richard Arneson and Jason Brennan, have sought to cast doubt on the compatibility of these allegiances. They charge that core elements of liberal political morality disallow the procedural justifications of democracy on which robust democratic commitments rest. The choice between democratic and non-democratic procedures should, they argue, be based on instrumental considerations only. This chapter shows that these liberal arguments for pure instrumentalism about political procedures fail: we can accept the liberal principles and values to which these arguments appeal, and yet invoke democratic procedural goods in the justification of democratic arrangements. By delineating the space that remains for procedural considerations within a broadly liberal political morality, this chapter provides an outline for justifications of democracy that take equally seriously the democratic and the liberal commitments many citizens of liberal democracies endorse.

Several democratic theorists have recently sought to vindicate the ideal of equal political power (“political equality”) by tying it to the non-derivative value of egalitarian relationships. This chapter critically discusses such arguments. It clarifies what it takes to vindicate the ideal of political equality, and distinguishes different versions of the relational egalitarian argument for it. Some such arguments appeal to the example of a society without social status inequality (such as caste or class structures); others to personal relationships among equals, like friendship. Each strategy faces problems. After discussing what social status consists in, the chapter argues that social status equality does not require an equal distribution of power, but only that unequal distributions are not justified on grounds incompatible with the citizens’ fundamental equal moral standing. By contrast, personal relationships among equals do require equal power; but establishing that their norms apply to our political community is challenging.

Among the functions of state borders is to delineate a domain within which outsiders may normally not interfere. But the human rights practice that has sprung up in recent decades has imposed significant limits on a state’s right against interference. This article considers the connection between human rights on the one hand and justified interference in the internal affairs of states on the other. States, this article argues, have a right against interference if and because they serve their subjects. Interference by outsiders threatens to set back their capacity to serve and thus ultimately harms those over whom the state exercises power. Human rights, in turn, circumscribe the outer limits of what any state can do while plausibly claiming to be serving its subjects. On this view, human rights are distinguished from other rights because they function as cancelling conditions on the state’s right against outside interference: while interfering in the internal affairs of a state normally wrongs that state, interfering where the state fails to respect human rights does not. Contrary to what is often thought, human rights violations do not justify outside interference. They merely make a state liable to such interference. The further considerations that must enter into an all things considered judgment in favor of interference are irrelevant for determining what human rights we have.

It is widely accepted that the state ought to treat like cases alike. But what exactly is the force of this requirement of equal treatment? In particular, can treating like cases alike be sufficiently important to justify (and perhaps even require) adopting what would otherwise be a morally unjustified policy? It is these questions, made vivid by Japa Pallikkathayil's original argument that restrictive abortion laws in the United States (and perhaps also elsewhere) are incompatible with the requirement of equal treatment, that this article explores.

Sophia Moreau, in her important book, offers an insightful account of (one strand of) the wrong of discrimination based on the evil of subordination. My symposium contribution seeks to clarify the structure of Moreau's account of subordination and its normative and axiological status. On one plausible view, subordination is fundamentally bad or wrong. On another view, subordination is a distinctive social phenomenon, which is bad or wrong only derivatively. I will outline each view, and consider the implications each has for certain issues central to Moreau's book.

Authority is an important feature of military life. Political and military superiors claim the power to give binding orders to their subordinates. If they have the authority they claim (and that many citizens and soldiers take them to possess), then the subordinates are morally required to do as commanded. Tadros’ To Do, To Die, To Reason Why challenges the authority claims that political and military superiors make in giving orders: the kinds of considerations ordinarily thought to underpin their authority – in particular, the instrumental benefits of authoritative decision-making in politics and military life – cannot justify it. Tadros’ claim is not that subordinates are never required to do what their superiors order. Trivially, superiors may order subordinates to do what they are anyway required to do. (The captain orders the privates not to kill the prisoners.) Less trivially, superiors’ orders may change the subordinates’ factual or epistemic circumstances, which results in their having duties that they would otherwise have lacked. (The captain orders a private to jump into the sea. His order startles a child on the shore so it loses its balance and plunges into the water. The private may now have a duty to jump in to save the child, and he may have that duty because the superior gave the order.) Yet this way of changing the subordinates’ duties is not, for Tadros, a genuine exercise of authority: authority brings about normative change directly, rather than by changing the subordinate’s factual or epistemic circumstances. It is authority so understood that, according to Tadros, military and political superiors claim and yet lack. Tadros offers two complementary arguments for this anarchist conclusion. First, he argues that superiors have practical authority over subordinates only if the subordinates have duties to obey (or follow) the superiors’ orders, rather than merely to conform with them (by doing something which happens to be what they were ordered to do). There must be a suitable link between order and action. But, Tadros argues, soldiers don’t have a duty to obey their superiors’ orders. (Call this the Obedience Claim.) So military superiors lack practical authority vis-à-vis their subordinates. (Call this the Authority Claim.) Second, Tadros argues that authority is either unjustified or otiose. Exercises of practical authority, by imposing duties, restrict their subjects’ freedom. Moral duties are difficult to justify precisely because they are freedom-restricting in this way; and only certain kinds of considerations suffice to make an action morally obligatory. Tadros argues that there are sufficient reasons for a superior to have and exercise the power to make ving morally obligatory by issuing a directive only if there are already sufficient reasons for ving being independently morally obligatory. (We call this the No Duty, No Authority Claim.) We challenge both arguments. Sections 2 and 3 show that, even if the Obedience Claim is true, it does not entail the Authority Claim. Section 4 casts doubt on the No Duty, No Authority Claim.

Explores the challenges facing democracies in the twenty-first century In Democratic Failure, Melissa Schwartzberg and Daniel Viehoff bring together a distinguished group of interdisciplinary scholars in political science, law, and philosophy to explore the key questions and challenges facing democracies, both in the past and present, around the world. In ten timely essays, contributors examine the fascinating, centuries-old question of whether or not democracy can ever fulfill the promise of its ideals. Together, they explore lessons from the history of democracy, various failures of democratic representation, and more. Ultimately, this latest installment of the NOMOS series provides thought-provoking insights into how we conceptualize, measure, and address democratic erosion in our present-day world.

This essay proposes that legitimacy (on at least one understanding of the protean term) is centrally a right to err: a right to make mistakes that harm interests of others that are ordinarily protected by rights (Section 1). Legitimacy so understood is importantly distinct from authority, the normative power to impose binding (or enforceable) rules at will (Section 2). Specifically, legitimate institutions have a distinctive liberty right to harm others’ interests that other agents normally lack. Their subjects in turn lack certain permissions to avoid, or redirect, the costs of the institutions’ mistakes in ways that would otherwise be permissible (Section 3). Legitimate institutions have this liberty right because, and insofar as, they act for their subjects (in a specific sense), and do so only for the subjects’ sake. As a matter of fairness, (some of) the costs of the institutions’ actions are borne by the subjects for whom they are undertaken (Section 4). In turn, where an institution fails to act for its subjects in the relevant way, it (and its officials) may have to bear the costs of its errors, which the subject is morally permitted to redirect by acts of resistance (Section 5).

Several democratic theorists have recently sought to vindicate the ideal of equal political power (“political equality”) by tying it to the non-derivative value of egalitarian relationships. This chapter critically discusses such arguments. It clarifies what it takes to vindicate the ideal of political equality, and distinguishes different versions of the relational egalitarian argument for it. Some such arguments appeal to the example of a society without social status inequality (such as caste or class structures); others to personal relationships among equals, like friendship. Each strategy faces problems. After discussing what social status consists in, the chapter argues that social status equality does not require an equal distribution of power, but only that unequal distributions are not justified on grounds incompatible with the citizens’ fundamental equal moral standing. By contrast, personal relationships among equals do require equal power; but establishing that their norms apply to our political community is challenging.

It is practically inevitable that even the best-intentioned public officials occasionally inflict unjust harm on people who should not have to suffer it. They mistakenly arrest innocent suspects, and convict innocent defendants. They erroneously adopt and enforce criminal laws that unduly restrict our freedom. They vote for, implement, and enforce tax laws that unfairly burden some citizens. And yet it is widely assumed that, as long as such officials act in good faith, and follow certain institutional rules, we aren’t permitted to protect the innocent victims of their mistakes by inflicting defensive harm on the officials. As a result, those victims may have to suffer injustices that we could, in principle, prevent. This is so even though, if a private person imposed similarly unjust harm, and did so on the basis of mistaken judgments that were equally in good faith, and just as reliable as the institutional judgments guiding the official, we could permissibly harm that person to defend the victim. This essay considers whether, and how, this asymmetric treatment can be justified. After some ground-clearing that sharpens the question, it briefly considers the dominant explanation offered by political philosophers, which focuses on how resisting official mistakes would impact innocent third parties (most obviously, one’s fellow citizens). Finding these explanations wanting, the essay turns to a less frequently considered alternative: under certain conditions, defending the innocent victim against the official’s mistake is unfair to the official who would be harmed in the process. In particular, if officials act for their subjects (in a quite specific sense), then we may, as a matter of fairness, be barred from harming the officials to protect those subjects from (some of) the unjust harms that officials erroneously inflict. This account chimes with familiar views in the history of political thought that take legitimate political power to be held in trust for the people, and legitimate governments to stand in fiduciary relations to their subjects. It explains why officials may in principle have special moral protection that private persons usually lack, and why we may have to put up with officials’ mistakes even if they inflict injustice on innocent persons. But it also reveals how demanding the conditions are under which officials have such protection, and why many existing legal and political institutions lack the legitimacy, and their officials the special moral protection against defensive harm, that they purport to have.

Law and Morality at War offers a broadly instrumentalist defense of the authority of the laws of war: these laws serve combatants by helping them come closer to doing what they have independent moral reason to do. We argue that this form of justification sets too low a bar. An authority’s directives are not binding, on instrumental grounds, if the subject could, within certain limits, adopt an alternative, and superior, means of conforming to morality’s demands. It emerges that Haque’s argument fails to vindicate the law’s authority over all combatants.

On September 3, 2015, the Political Epistemology/ideas, Knowledge, and Politics section of the American Political Science Association sponsored a roundtable on epistemic democracy as part of the APSA’s annual meetings. Chairing the roundtable was Daniel Viehoff, Department of Philosophy, University of Sheffield. The other participants were Jack Knight, Department of Political Science and the Law School, Duke University; Hélène Landemore, Department of Political Science, Yale University; and Nadia Urbinati, Department of Political Science, Columbia University. We thank the participants for permission to republish their remarks, which they edited for clarity after the fact.

How can one person’s having political power over another be justified? This essay explores the idea that such justifications must be in an important sense derivative, and that this ‘Derivative Justification Constraint’ bars certain justifications widely endorsed in political and philosophical debates. After critically discussing the most prominent extant articulations of the Constraint (associated with a view often called ‘political instrumentalism’), the essay offers a novel account of what precisely the Constraint bars (in short: justification by appeal to non-derivative goods that include among their elements one person’s ruling over another), what motivates it (in a nutshell: a deeply non-instrumental concern for each person’s moral independence), and what it entails for how we may justify democratic political arrangements in particular.

This essay seeks to provide a justification for the ‘egalitarian authority claim’, according to which citizens of democratic states have a moral duty to obey (at least some) democratically made laws because they are the outcome of an egalitarian procedure. It begins by considering two prominent arguments that link democratic authority to a concern for equality. Both are ultimately unsuccessful; but their failures are instructive, and help identify the conditions that a plausible defense of the egalitarian authority claim must meet. The first argument (discussed in Section II, after Section I clarifies what authority and democracy are taken to consist in) appeals to the simple idea that fairness disallows granting ourselves special privileges that we deny to others; and it suggests that fairness thus requires obeying democratic decisions rather than acting on our own judgment of the right policy. I show that this argument fails; and its failure indicates that we must invoke a less formal, more substantive understanding of equality to justify democratic authority. The second argument, recently suggested by Thomas Christiano, does just that. Democratic authority is, on this account, not justified by the formal demand for equal treatment but by the distinctive value of showing public equal respect to our fellow citizens. Such public equal respect requires treating as authoritative the democratic decisions in which citizens had an equal say. This argument does not, however, succeed in its goal either. While it plausibly establishes the value of democratic institutions, it does not provide grounds for a duty to obey democratic decisions (Section III). This essay thus develops an alternative argument, according to which egalitarian procedures have authority because, by obeying them, we can avoid acting on certain considerations that must be excluded from our intrinsically valuable egalitarian relationships. The authority of democratic decisions rests on the egalitarian fact that none of us has more of a say than any other, not on the further fact (crucial to the previous argument) that each of us has a positive say (Sections IV and V). The argument in turn helps us understand the limits of democratic authority: it is constrained not only by a demand for equality, and by considerations of justice, but also by a requirement of mutual concern without which our egalitarian relationships lack their distinctive value (Section VI).

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal moral standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV).

Call “epistocracy” a political regime in which the experts, those who know best, rule; and call “the epistocratic claim” the assertion that the experts’ superior knowledge or reliability is “a warrant for their having political authority over others.” Most of us oppose epistocracy and think the epistocratic claim is false. But why is it mistaken? Contemporary discussions of this question focus on two answers. According to the first, expertise could, in principle, be a warrant for authority. What bars the successful justification of epistocracy is that the relevant kind of expertise does not exist in politics (either because there are no procedure-independent standards of right or wrong in politics, or because, though such standards exist, no one knows better than anyone else what they require). This skeptical position comes, however, at a significant cost: Without the assumption that some political decisions are better than others, and that some people know better than others what these decisions are, it is difficult to make sense of much of our political practice, including how we criticize politicians and choose among candidates for office. The second answer accepts that there is expertise of the relevant sort in politics. It argues, however, that such expertise does not justify political authority because political justifications are subject to special “acceptability requirements.” Since claims to expertise are normally not acceptable to all qualified (reasonable etc.) points of view, they cannot function as premises in the justification of political authority, and the epistocratic claim fails. Yet as a number of critics have pointed out, this (broadly Rawlsian) strategy faces significant problems: it is at least unclear whether the strategy in fact bars all epistocratic conclusions whether there is any principled way to draw the distinction between qualified and non-qualified points of views on which it depends; and whether principled defenses for it are available and internally consistent. This article outlines a third and previously largely overlooked answer, which resists the epistocratic claim without either denying the existence of expertise in politics or invoking special acceptability requirements for political justifications. The only plausible argument for the epistocratic claim, this article argues, focuses on the compensatory role that the expert’s authority plays in correcting the subject’s relative unreliability or other agential shortcomings. The expert’s authority is thus justified only if the subject, by adopting a policy of obeying the expert’s directives, does not face problems that are very similar to the ones that the expert’s authority was meant to solve in the first place. If, for instance, the subject finds it no easier to reliably identify what the expert’s directives require of him than to reliably assess and act on the reasons with which the expert is meant to help him, then the expert’s directives lack the compensatory value that would justify her authority. But if some widely accepted empirical conjectures about politics in a pluralistic political community are correct, then citizens normally either have no reason to adopt a policy of obeying experts, or the experts with regard to whom they have reason to adopt such a policy differ, so that no expert has the kind of general authority over the polity that we associate with political rule. (We may call this the “non-compensation argument” against epistocracy.) The argument is important both because it helps shed light on the proper relation between authority and expertise in general, and because it shows that we can normally reject the epistocratic claim without adopting either the skeptical or the Rawlsian strategy, thus undercutting whatever support these views derive from the mistaken perception that they are necessary for resisting the threat of epistocracy. Finally, because the anti-epistocratic constraints it introduces apply only to justifications of the subjects’ duty to obey, but not to the existence or activities of political institutions as such, the compensation argument can accommodate our anti-epistocratic intuitions without excluding epistemic considerations from the design of political institutions more generally.

Among the functions of state borders is to delineate a domain within which outsiders may normally not interfere. But the human rights practice that has sprung up in recent decades has imposed significant limits on a state’s right against interference. This article considers the connection between human rights on the one hand and justified interference in the internal affairs of states on the other. States, this article argues, have a right against interference if and because they serve their subjects. Interference by outsiders threatens to set back their capacity to serve and thus ultimately harms those over whom the state exercises power. Human rights, in turn, circumscribe the outer limits of what any state can do while plausibly claiming to be serving its subjects. On this view, human rights are distinguished from other rights because they function as cancelling conditions on the state’s right against outside interference: while interfering in the internal affairs of a state normally wrongs that state, interfering where the state fails to respect human rights does not. Contrary to what is often thought, human rights violations do not justify outside interference. They merely make a state liable to such interference. The further considerations that must enter into an all things considered judgment in favor of interference are irrelevant for determining what human rights we have.