Elements of democratic justice

Political Theory

Volumn 24, Issue 4, 1996, Pages 579-619

  Shapiro, Ian ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33745160447     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591796024004001     Document Type: Article

References (93)

1. John Dewey, The Public and Its Problems (New York: Henry Holt, 1927), 84-5.
2. See, for example, Guiseppe Di Palma, To Craft Democracies: An Essay on Democratic Transitions (Berkeley: University of California Press, 1990), 23, for defense of the view that the democratic ideal should be disengaged "from the idea of social progress" if it is to endure, and
3. Samuel P. Huntington, The Third Wave: Democratisation in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991), 165-9, for the argument that political leaders who sell out on their constituents' demands for social justice are more likely to succeed in consolidating democratic institutions than those who do not.
4. See my "Three Ways to Be a Democrat," Political Theory 22 (February 1994): 124-51.
5. John Rawls, "Fairness to Goodness," Philosophical Review 82 (1973): 228,
6. and "Justice as Fairness: Political not Metaphysical," Philosophy and Public Affairs 14, no. 3 (1985): 223-51, esp. 223-6.
7. See Cass Sunstein, "On Legal Theory and Legal Practice," in Nomos XXXVII: Theory and Practice, ed. lan Shapiro and Judith Wagner DeCew (New York: New York University Press, 1995), 267-87.
8. Barrington Moore, Jr., Liberal Prospects under Soviet Socialism: A Comparative Historical Perspective (New York: The Averell Harriman Institute, 1989), 25.
9. Nelson Mandela, "Address to Court before Sentencing," in Ideologies of Liberation in Black Africa 1856-1970, ed. J. Ayo Langley (London: Rex Collins, 1979), 665.
10. On the Chartists, see Dorothy Thompson, The Chartists (London: Temple Smith, 1984).
11. Generally see Elie Halevy, The Growth of Philosophic Radicalism (New York: Kelley, 1972).
12. Langley, Ideologies of Liberation, 664.
13. For one conventional statement of this view, see William Riker, Liberalism against Populism (Prospect Heights, IL: Waveland, 1982). It might be objected that the depiction of liberalism in the text is something of a caricature in that it deals with academic rather than popular conceptions, and only a subset of academic conceptions of liberalism at that This is conceded, though I would contend that it is an expansive subset, ranging at least from the fears of majority tyranny expressed through the state that can be found in Mill's On Liberty (1859; reprint. Indianapolis, IN: Hackett, 1978) and de Tocqueville's Democracy in America (1832; reprint. Garden City, NY: Doubleday, 1969), through the libertarian liberalisms of Riker, Nozick, and Buchanan and Tullock discussed in the text, and the nonlibertarianism antistatism embraced by Judith N. Shklar, Ordinary Vices (Cambridge, MA: Harvard University Press, 1984).
14. Robert Nozick, Anarchy, Stale, and Utopia (New York: Basic Books, 1974), 4.
15. For extensive discussion of this question, see my The Evolution of Rights in Liberal Theory (New York: Cambridge University Press, 1986), chaps. 4-6,
16. and "Three Fallacies Concerning Majorities, Minorities, and Democratic Politics," in Nomos XXXII: Majorities and Minorities, ed. John Chapman and Alan Wertheimer (New York: New York University Press, 1990), 79-125.
17. See Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), 3-20,
18. and Alasdair Maclntyre, After Virtue, 2d ed. (Notre Dame, IN: University of Notre Dame Press, 1984), 181-203.
19. James Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor, MI: Ann Arbor Paperbacks, 1962), 77,73-6.
20. Brian Barry, Political Argument ed., (1965; reprint, Herefordshire: Harvester Wheat-sheaf, 1990); Douglas W. Rae, "Decision-Rules and Individual Values in Constitutional Choice," American Political Science Review 63, no. 1 (1969): 40-56, 51;
21. Michael Taylor, "Proof of a Theorem on Majority Rule," Behavioral Science 14 (May 1969): 228-31. When the number of voters is odd, the optimal decision rule is majority rule, n over two, plus one-half; when n is even, the optimal decision rule is either majority rule (n over two plus one), or majority rule minus one (simply n over two). Generally, see
22. Dennis C. Mueller, Public Choice II (New York: Cambridge University Press, 1989), 96-111.
23. Even if we accept the contractualist metaphor, the logic of Buchanan's and Tullock's defense of unanimity rule can be shown to break down once time and externalities are taken into account. See Douglas W. Rae, 'The Limits of Consensual Decision," ,Amriaw Political Science Review 69 (1975): 1270-94.
24. It might appear that no-fault divorce destroys the marriage contract qua contract entirely, since it is terminable at the will of either party. But such a conclusion (i) ignores the fact that conventional unanimity rule operates in marriages unless and until they reach the point of dissolution, and (ii) conflates the grounds for divorce with the terms of divorce (and in particular the distribution of costs that courts will impose on divorcing parties). In fact many countries, and some American states, that embrace some form of no-fault divorce do not go all the way with it. Instead they insist that the court find that "irretrievable breakdown" has occurred, for which purpose the judge may take various factors including the wishes of both parties into account. See Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge, MA: Harvard University Press, 1987), 64-81.
25. See Robert Dahl, A Preface to Economic Democracy (Berkeley: University of California Press, 1985), 111-35.
26. See Elaine Spitz, Majority Rule (Chatham, NJ: Chatham House, 1984), 135-215.
27. See my "Three Ways to Be a Democrat," 142-4.
28. This is discussed at length in my Political Criticism (Berkeley: University of California Press, 1990), 252-61.
29. The S50 million figure is reported by Tim Rinne, "The Rise and Fall of Single-Payer Health Care in Nebraska," Action for Universal Health Care 3, no. 10 (May 1995): 4-5. See also
30. Tom Hamburger and Ted Marmor, "Dead on Arrival: Why Washington's Power Elites Won't Consider Single Payer Health Reform," The Washington Monthly (September 1993): 27-32.
31. Liberals take the basic unit of the nation state for granted, treating it as a kind of Lockean voluntary association writ large, as has often been pointed out in criticism of Rawls. See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 371-82, and his
32. "The Law of Peoples," Critical Inquiry 20 (Autumn 1993): 36-68.
33. No doubt this is often a consequence of the liberal proclivity for thinking in contractualist terms. For an illustration of the communitarian view of membership as the basic trumping good, see Walzer, Spheres of Justice, 29,31-63.
34. My contention that the causally based view is more defensible than the going alternatives is compatible with a number of recent arguments whose purpose is to decenter membershipbased sovereignty as the decisive determinant of participation, and to replace it with systems of overlapping jurisdiction in which different groups of persons are seen as sovereign over different classes of decisions. See Thomas Pogge, "Cosmopolitanism and Sovereignty," Ethics 103 (October 1992): 48-75;
35. Alexander Wendt, "Collective Identity-Formation and the International State," American Political Science Review 88, no. 2 (June 1994): 384-96;
36. and William Antholis, "Liberal Democratic Theory and the Transformation of Sovereignty" (Ph.D. diss., Yale University, 1993).
37. Barrington Moore, Jr., Liberal Prospects, 8.
38. See also Archibald S. Foord, His Majesty's Opposition 1714-1830 (Oxford: Oxford University Press, 1964).
39. Even before the advent of the modem literature on public choice, Schumpeter had exposed the logical flaws in the Rousseauist idea of a general will, concluding that "though a common will or public opinion of some sort may still be said to emerge from the infinitely complex jumble of individual and group-wise situation, volitions, influences, actions and reactions of the 'democratic process,' the result lacks not only rational unity but also rational sanction." Joseph Schumpeter, Capitalism. Socialism and Democracy (New York: Harper and Row, 1942), 253.
40. Huntington regards at least two turnovers of power following elections as necessary for a country's being democratic. See The Third Wave, 6-7.
41. See also Robert Dahl, Polyarchy: Participation and Opposition (New Haven, CT: Yale University Press, 1971).
42. Stone focused his attention on "statutes directed at particular religious ... or racial minorities" and circumstances that tend "seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities," United States v. Carotene Products Co., 304 U.S. 144 (1938), 152 n. 4.
43. John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980). Ely described his argument as purely procedural, designed to repair defects of democratic process. But as critics have pointed out and the discussion below makes clear, it is obviously a substantive argument.
44. See R. Smith, Liberalism and American Constitutional Law (Cambridge, MA: Harvard University Press, 1985), 89-91,170-4.
45. Charles Beitz, "Equal Opportunity in Political Representation," in Equal Opportunity, ed. Norman E. Bowie (Boulder, CO: Westview, 1988), 155-74. It should not be thought that Carotene Products logic is the exclusive preserve of the political left. For instance, Riker and Weingast employ it to criticize taxation of property: "What protection is there against members of today's majority from providing private, redistributive benefits to themselves under the guise of public purposes and at the expense of some minority of owners and the efficiency of production? Why is the abridgement of a minority's economic rights less troubling than an abridgement of the same minority's political rights?" William H. Riker and Barry R. Weingast, "Constitutional Regulation of Legislative Choice: The Political Consequences of Judicial Deference to Legislatures," The Hoover Institution, Stanford University, Working Paper Series (December 1986), 6.
46. Beitz, "Equal Opportunity," 168.
47. The quixotic political commitments that follow from the injunction to overthrow all hierarchy everywhere have been explored in Roberto Unger's multivolume Politics (New York: Cambridge University Press, 1987). For criticism of his argument, see my "Constructing Politics," Political Theory 17 (August 1989): 475-82.
48. Wisconsin v. Yoder, 406 U.S. 205 (1972). From the standpoint of democratic justice, Yoder was thus wrongly decided, although it would have been a more difficult case had the parents pressed their best understandings of their children's interests rather than their own.
49. This is not to say that all polygamous regimes fare equally poorly from the standpoint of democratic justice. Polygamous regimes from which there is no realistic chance of escape (as when they are enshrined in a country's legal system as the only available form of marriage) fare worse than polygamous regimes that are tolerated but not obligatory, and from which escape is legally possible and not prohibitively expensive. Even in these circumstances there is always the possibility that voluntary adherents have been brainwashed, of course, and arguments to this effect cannot be dismissed out of hand. But their proponents will have to come to grips with the eloquently reasoned denials of this that have been put forward by some Mormon women. It has been argued, for instance, that polygamous marriage makes it possible for women to have both a career and a family so that polygamy "is good for feminism." See Elizabeth Joseph, "My Husband's Nine Wives," New York Times, April 9,1991, A22.
50. The Oneida Perfectionists, founded in 1848 in Oneida, New York, by John Henry Noyes, rejected all forms of private property, and extended their belief in community property to community property in persons. Like the Mormon polygamists, they were persecuted by the state, eventually abandoning their commitment to complex marriage in 1879. See Carol Weisbrod, "On the Breakup of Oneida," Connecticut Law Review 14 (Summer 1982): 717-32. In fact, the community was run in an authoritarian manner by Noyes, who decided unilaterally who could marry, suggesting that the community would have been suspect on a number of grounds from the standpoint of democratic justice. See Spenser Klaw, Without Sin (New York: Alien Lane, 1993).
51. Rawls, A Theory of Justice, 42-5,61-5,82-9,151-61.
52. It is not difficult, for example, to demonstrate the existence of contradictory imperatives flowing from Rawls's lexical rankings. See T. M. Scanlon, "Rawls's Theory of Justice," in Reading Rawls, ed. Norman Daniels (Bristol, UK: Basil Blackwell, 1975), 169-205;
53. H.L.A. Hart, "Rawls on Liberty and Its Priority," idem, 230-52;
54. and Benjamin Barber, "Justifying Justice: Problems of Psychology, Politics and Measurement in Rawls," idem, 292-318.
55. This is the view defended in Richard Arneson and lan Shapiro, "Democracy and Religious Freedom: A Critique of Wisconsin v. Yoder," in Nomos XXXVIII: Political Order, ed. lan Shapiro and Russell Hardin (New York: New York University Press, forthcoming).
56. For a useful summary of recent literature, see Henry Hansman, "When Does Worker Ownership Work?" Yale Law Journal 99 (June 1990): 1749-816.
57. Robert Dahl has argued that analogous skepticism is in order toward claims that democratic control of nuclear arsenals and development interferes with their efficient deployment See Controlling Nuclear Weapons: Democracy versus Guardianship (Syracuse, NY: Syracuse University Press, 1985), 33-51.
58. Carmen Sirianni, "Learning Pluralism: Democracy and Diversity in Feminist Organizations," in Nomos XXXV: Democratic Community, ed. John Chapman and lan Shapiro (New York: New York University Press, 1993), 283-312.
59. See James Fishkin, Democracy and Deliberation: New Directions for Democratic Reform (New Haven, CT: Yale University Press, 1991).
60. Giovanni Sartori, The Theory of Democracy Revisited, vol. 1 (Chatham, NJ: Chatham House, 1987), 119-20.
61. See Susan Okin, Justice, Gender, and tlie Family (New York: Basic Books, 1989), 134-69.
62. See Charles Sabel and Jonathan Zeitlin, "Historical Alternatives to Mass Production," Past and Present 108 (1986): 133-76; and Hansman, "When Does Worker Ownership Work?"
63. See Herbert Alexander, Financing Politics: Money, Elections and Political Reform (Washington, DC: Congressional Quarterly Press, 1976)
64. and Frank J. Sorauf, Inside Campaign Finance (New Haven, CT: Yale University Press, 1992).
65. John Dewey, "Democratic Ends Need Democratic Methods for Their Realization," New Leader 22 (October 1939) reprinted in John Dewey, The Political Writings, ed. Debra Morris and lan Shapiro (Indianapolis, IN: Hackett, 1993), 206.
66. For elaboration, see Jennifer Hochschild, The New American Dilemma: Liberal Democracy and School Desegregation (New Haven, CT: Yale University Press, 1984).
67. Adam Przeworski, Democracy and the Market (Cambridge, England: Cambridge University Press, 1991), 183-4.
68. See also Janos Kornai, The Road to a Free Economy: Shifting from a Socialist System (New York: Norton, 1990);
69. and Jeffrey Sachs, "The Transformation of Eastern Europe: The Case of Poland" (The Frank E. Seidman Lecture, Rhodes College, Memphis, Tennessee, September 26, 1991);
70. Boris Pleskovic and Jeffrey Sachs, "Political Independence and Economic Reform in Slovenia," in The Transition in Eastern Europe, ed. Oliver Blanchard, Kenneth Froot, and Jeffrey Sachs, vol. 1 (Chicago: University of Chicago Press, 1994), 191-220.
71. "A pure public good has two salient characteristics: jointness of supply, and the impossibility or inefficiency of excluding others from its consumption, once it has been supplied by some members of the community." Mueller, Public Choice II, 11.
72. Przeworski, Democracy and the Market, 183-4.
73. On the collapse of the roundtable negotiations and the emergence of an elite pact between the National Party and ANC leaderships, see my "Democratic Innovation: South Africa in Comparative Context," World Politics 46, no. 1 (October 1993): 138-41.
74. As far as political elites sprinkling in benefits for themselves is concerned, the 1993 constitution requires that any member of parliament who ceases to be a member of his or her political party will also cease to be a member of parliament, being replaced by someone else from the party's parliamentary list. As for bribes, all civil service jobs and salaries were guaranteed for at least five years following the transition, and in the last weeks before the election President de Klerk transferred some three million acres of land to Zulu king Goodwill Zwelitini in order to prevent their falling under the control of the new national government following the April 1994 elections. New York Times, May 24,1994, A6. For further discussion, see Courtney Jung and lan Shapiro, "South Africa's Negotiated Transition: Democracy, Opposition, and the New Constitutional Order," Politics &. Society 23, no. 3 (September 1995): 269-308.
75. See Laurence H. Tribe, American Constitutional Law, 2d ed. (New York: Foundation, 1988), 251-75.
76. On the changing law of marital rape in the United States, see Michael Freeman, "If You Can't Rape Your Wife, Who[m] Can You Rape? The Marital Rape Exception Re-examined," Family Law Quarterly 15, no. 1 (Spring 1981): 1-29; Deborah Rhode, Justice and Gender (Cambridge, MA: Harvard University Press, 1989), 249-51; Rene I. Augustine, "Marriage: The Safe Haven for Rapists," Journal of Family Law 29, no. 3 (1990-1): 559-90; Sandra Ryder and Sheryl Kuzmenka, "Legal Rape: The Marital Exception," John Marshall Law Review 24 (1992): 393-421, On the English evolution of the exception, see P. M. Bromley and N. V. Lowe, Family Law, 7th ed. (Salem, NH: Butterworths, 1987), 109-12.
77. See H. H. Clark, The Law of Domestic Relations in the United States, 2d ed. (Saint Paul, MN: West, 1988), 589.
78. For an account of the extent and effects of these policies, see Helen Suzman, In No Uncertain Terms (New York: Knopf, 1993), 65-212.
79. Walzer, Spheres of Justice, 3-30.
80. I have noted elsewhere that the appeal to shared meanings fails because these are invariably in contention. "Three Ways to Be a Democrat," 130-5.
81. Robert A. Butt, The Constitution in Conflict (Cambridge, MA: Harvard University Press, 1992), 29.
82. Brown v. Board of Education 1,347 U.S. 483 (1954).
83. Brown v. Board of Education II, 349 U.S. 294 (1955).
84. VvA, Constitution in Conflict, 271-310.
85. Ruth Bader Ginsburg, "Speaking in a Judicial Voice" (Madison Lecture, New York University Law School, March 9, 1993, mimeo), 30-8.
86. See also Nomination of Ruth Bader Ginsburg to Be an Associate Justice of the United States Supreme Court: Report Together with Additional Views, Exec. Report 103-6-93-1 United States Senate.
87. Roe v. Wade, 410 U.S. 113 (1973).
88. Ginsburg, "Speaking in a Judicial Voice," 32.
89. Burt, Constitution in Conflict, 348.
90. Ibid., 349-52. The Ginsburg-Burt approach was finally adopted by the Supreme Court in Planned Parenthood of Pennsylvania v. Casey, 112 S. Ct. 2791 (1992). By affirming the existence of a woman's fundamental constitutional right to an abortion, recognizing the legitimacy of the state's interest in potential life, and insisting that states may not pursue the vindication of that interest in a manner that is unduly burdensome to women, the Court set some basic parameters within which legislatures must now fashion regulations that govern abortion. The Casey dissenters are right to point out that there will be a degree of unpredictability and confusion as different regulatory regimes are enacted in different states and tested through the courts; 112 S. Ct. 2791, at 2866 (1992). On views of adjudication that encourage efficiency and clarity above all else this will appear to be a reprehensible invitation to further litigation. On the Ginsburg-Burt view, however, that Casey invites litigation may be a cost worth paying. It places the burden of coming up with modes of regulating abortion that are not unduly burdensome on democratically elected legislatures, and forces them to do this in the knowledge that the statutes they enact will be tested through the courts and thrown out if they are found wanting. These issues are taken up further in my introduction to Abortion: The Supreme Court Decisions (Indianapolis, IN: Hackett, 1995), 1-23.
91. Dred Scott v. Sandford, 60 U.S. 393 (1856); In re Civil Rights Cases, 109 U.S. 3 (1883); and Lochner v. New York, 198 U.S. 45 (1905).
92. From an address to the Philosophical Union of the University of California in November 1918, reprinted in Dewey, The Political Writings, 44.
93. Ion Shapiro is professor of political science at Yale. His new book, Democracy's Place, will be published by Cornell University Press this fall.