A majority in the lifeboat

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 1043-1057

  Waldron, Jeremy ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 77954346058     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (78)

1. RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 242, on file with the Boston University Law Review). I will not follow Dworkin in characterizing the relevant principle as "majority rale," for reasons stated by Hannah Arendt: "Only where the majority, after the decision has been taken, proceeds to liquidate politically ... the opposing minority, does the technical device of majority decision degenerate into majority rale." HANNAH ARENDT, ON REVOLUTION 163 (1963);
2. see also JEREMY WALDRON, LAW AND DISAGREEMENT 108 (1999) ("[Majority-decision] may be a technical procedure which we have invented, but also a method that is morally respectable in a way that other technicalities and conventions might not be.").
3. DWORHN, supra note 1 (manuscript at 240-46).
4. RONALD DWORHN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 15-19 (1996) [hereinafter DWORHN, FREEDOM'S LAW].
5. See DWORHN, FREEDOM'S LAW, supra note 3, at 23-25;
6. RONALD DWORHN, IS DEMOCRACY POSSIBLE HERE?: PRINCIPLES FOR A NEW POLITICAL DEBATE 127-64 (2006) [hereinafter DWORHN, IS DEMOCRACY POSSIBLE HERE?].
7. RONALD DWORHN, A BILL OF RIGHTS FOR BRITAIN 36 (1990).
8. Dworkin says that he has "defended judicial review for many years against the charge that ... it is necessarily and always inconsistent with the right view of democracy." DWORKIN, supra note 1 (manuscript at 251);
9. see also DWORKIN, FREEDOM'S LAW, supra note 3, at 7 ("Democracy does not insist on judges having the last word, but it does not insist that they must not have it");
10. id. at 32-33 (arguing that as long as a court's judicial review of a statute decides the issue correctly, "the decision is not anti-democratic, but, on the contrary, improves democracy").
11. Of course, like other Supreme Court watchers, Dworkin counts votes all the time, and is very sensitive to the issue of the difference that a given judicial appointment will make to the majoritarian politics of this nine-member institution.
12. See, e.g., Ronald Dworkin, The Supreme Court Phalanx, 54 N.Y. REV. BOOKS, Sept. 27, 2007,
13. reprinted in RONALD DWORHN, THE SUPREME COURT PHALANX: THE COURT'S NEW RIGHT-WING BLOC 47,47-70 (2008).
14. Jeremy Waldron, Rights and Majorities: Rousseau Revisited, in NOMOS XXXIJ: MAJORITIES AND MINORITIES 44,67 (John W. Chapman & Alan Wertheimer eds., 1990);
15. see also Jeremy Waldron, Deliberation, Disagreement, and Voting, in DELIBERATIVE DEMOCRACY AND HUMAN RIGHTS 210, 214-25 (Harold Hongju Koh & Ronald C. Slye eds., 1999).
16. DWORHN, supra note 1 (manuscript at 219).
17. Id. (manuscript at 243).
18. DWORHN, FREEDOM'S LAW, supra note 3, at 139.
19. DWORHN, supra note 1 (manuscript at 219). Perhaps it has something (a little) in common with Fuller's example of the explorers trapped in a cave who drew lots to eat one of their number.
20. See Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616,616-18 (1949). It might also owe something to the CBS "reality" TV show Survivor, in which (so I am told by Wikipedia), "contestants are isolated in the wilderness and compete for cash and other prizes. The show uses a system of progressive elimination, allowing the contestants to vote off other tribe members until only one final contestant remains and wins the title of 'Sole Survivor'." Wikipedia, Survivor (TV series), http://en. wikipedia.org/wiki/Survivor-(TV-series) Oast visited Feb. 13,2010).
21. United States v. Holmes, 26 F. Cas. 360, 361 (C.C.E.D. Pa. 1842) (No. 15,383).
22. I suppose one might also cite R. V. Dudley & Stephens, (1884) 14 Q.B.D. 273, 273-75 (finding crew of shipwreck guilty of murder where they killed and ate their cabin boy in order to survive).
23. Dworkin's casual reference to a "cabin-boy," DWORHN, supra note 1 (manuscript at 243), hints in this direction, but in Dudley & Stephens there was none of the discussion of methods of choice that we find in Holmes. Dudley & Stephens, 14 Q.B.D. at 273-75.
24. See generally A.W. BRIAN SIMPSON, CANNIBALISM AND THE COMMON LAW (1984) (discussing Dudley & Stephens at length).
25. Holmes, 26 F. Cas. at 361.
26. Id. at 367.
27. Id.
28. Id. at 365.
29. Id. at 367 ("If, indeed, the peril be instant and overwhelming, leaving no chance of means, and no moment for deliberation, then, of course, there is no power to consult, to cast lots, or in any such way to decide-").
30. Id at 363.
31. DWORHN, supra note 1 (manuscript at 243)
32. -21 Id.
33. Id. (manuscript at 219). Dworkin doesn't deny that majoritarian procedures have instrumental value. He says: "Majoritarian institutions may well have instrumental value a regime backed by most people is usually more stable than one dominated by some powerful minority. But... that is an instrumental not an intrinsic value."
34. Id.
35. Id. (manuscript at 243) (emphasis added).
36. Id. ("Even if counting heads is not a basic, universal principle of fairness in collective decision, it may still be the only fair way of deciding which laws will be adopted and enforced in a coercive political community.").
37. Someone may object, concerning the distinction between (2) and (3), that majoritydecision can be intrinsically fair in some circumstances only if it adds something by way of intrinsic fairness in all circumstances. But that need not be the case: features of certain cases may not just over-balance the intrinsic fairness of majority-decision, but may actually cancel it out. (An analogy: the generosity of a payment from one person to another may be cancelled out in some cases by virtue of a corrupt context.)
38. DWORHN, supra note 1 (manuscript at 219).
39. Dworkin later sets out a version of a conception that ties democracy to majority will: The majoritarian conception holds that people govern themselves when the largest number of them rather than some smaller group within them holds fundamental political power. It therefore insists that the structures of representative government should realize the following condition: institutions should enhance the likelihood that the community's laws and policies will be those that the largest number of citizens, after due discussion and reflection, prefer. Elections should be frequent enough so that officials will be encouraged to do what most people want; federal units and parliamentary districts should be drawn, and constitutional power divided among types and levels of officials, with that sovereign aim in view. Further questions - referenda? proportional representation? - should be debated and decided in the same way. Which system is more likely reliably to secure the reflective and settled will of the majority of citizens in the long ran?
40. Id. (manuscript at 240).
41. Even that would not be the case, however, if it were sensible to think that the main value of democracy is instrumental to other values, like stability or prosperity. On an instrumental theory of democracy, it might be entirely appropriate to tie the definition of "democracy" to some decision-procedure that was valuable only in an instrumental way.
42. See JOSIAH OBER, DEMOCRACY AND KNOWLEDGE: INNOVATION AND LEARNING IN CLASSICAL ATHENS 160(2008).
43. DWORHN, supra note 1 (manuscript at 243).
44. Id.
45. Id.
46. For an outline of my argument rebutting Dworkin's claim, see WALDRON, supra note 1, ch. 13.
47. Alternatively, perhaps he believes it is an instance of the majority deciding in their own cause. For an extended critique of the overuse of this idea, see generally Jeremy Waldron, Legislatures Judging in Their Own Cause, 3 LEGISPRUDENCE 125 (2009).
48. DWORKIN, IS DEMOCRACY POSSIBLE HERE?, supra note 4, at 139.
49. ARENDT, jupra note 1, at 163.
50. DWORKIN, supra note 1 (manuscript at 243).
51. DWORKIN, IS DEMOCRACY POSSIBLE HERE?, supra note 4, at 139.
52. DWORHN, supra note 1 (manuscript at 219).
53. Id.
54. See RONALD DWORHN, TAHNG RIGHTS SERIOUSLY 234-38 (1977);
55. Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153, 154 (Jeremy Waldron ed., 1984);
56. Jeremy Waldron, Pildes on Dworkin's Theory of Rights, 29 J. LEGAL STUD. 301, 301-07 (2000) (discussing Dworkin's theory of rights as tramps and defending it from a mischaracterization by Richard H. Pildes).
57. Dworkin says: We must take care not to confuse this majoritarian conception of democracy with some aggregative theory of justice, like utilitarianism, that holds that laws are just when they produce the greatest possible sum or average of happiness (or some other conception of well-being) within a targeted community. (The phrase "majority will" is dangerously ambiguous, because it is sometimes used to describe a majoritarian process and sometimes a utilitarian or other aggregative result.) There is no reason to assume that a majoritarian electoral process will even typically produce a result that would be deemed just on that - or any other - standard. On the contrary, a majoritarian process might well produce - and often has produced - laws that injure total or average wellbeing on any conception of what that is.
58. DWORKIN, supra note 1 (manuscript at 240).
59. It is interesting, though, that Dworkin has not - perhaps till now - used the external preferences point to establish the legitimacy of qualifying majoritarian decision-making with the specific institution of judicial review; his discussion of that issue in, say, Freedom's Law, makes no use of the external preferences point.
60. See DWORKIN, FREEDOM'S LAW, supra note 3, at 1-38.
61. See supra Part IV.
62. United States v. Holmes, 26 F. Cas. 360,363 (C.C.E.D. Pa. 1842) (No. 15,383).
63. Admittedly, the principle of majority-decision faces other difficulties, such as those identified by Kenneth Arrow.
64. See, e.g., Saul Levmore, Parliamentary Law, Majority Decisionmaking, and the Voting Paradox, 75 VA. L. REV. 971, 987-88 (1989);
65. Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1, 6-7 (1991). But actually, as Arrow shows, that does not distinguish it from most other decision-procedures and it certainly does not detract from the moral significance of the May argument, which I am considering here.
66. KENNETH J. ARROW, 1 COLLECTED PAPERS OF KENNETH J. ARROW: SOCIAL CHOICE AND JUSTICE 5-7,131 (1983).
67. Kenneth O. May, A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision, 20 ECONOMÉTRICA 680 (1952);
68. see also AMARTYA K. SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 71-73 (1970) (elaborating on May's theorem).
69. See supra notes 37-40 and accompanying text.
70. See supra notes 39-43 and accompanying text.
71. See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE 208-10 (2000).
72. See, e.g., DWORHN, FREEDOM'S LAW, jupra note 3, at 15-19.
73. See DWORKIN, supra note 49, at 184-210.
74. DWORHN, supra note 1 (manuscript at 242) ("Many people - I imagine most people who have thought about the matter - favor the majoritarian conception because they subscribe to what they take to be a more general, indeed fundamental, principle of fairness and equality: the 'counting heads' principle. Jeremy Waldron, among contemporary political theorists, has given that principle most prominence in his arguments against judicial review.").
75. Id. (manuscript at 245). Curiously, this consideration did not weigh with members of the civil rights movement who braved dogs, fire-hoses, and beatings to get the right to vote and have their vote counted as the equal of that of any other voter. Professor Dworkin appears to acknowledge the force of this point in his comments about "dignity."
76. See id. (manuscript at 245-46).
77. See, e.g., id. (manuscript at 244-46);
78. DWORKIN, jupra note 49, at 184-210.