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The Journal of Political Philosophy: Volume 11, Number 1, 2003, pp. 122–132 Debate: Defending the Purely Instrumental Account of Democratic Legitimacy RICHARD J. ARNESON Philosophy, University of California, San Diego GOVERNMENTS compel their subjects to obey laws and duly empoweredcommands of public officials. Under what circumstances is this coercion by governments morally legitimate? In the contemporary world, many say a legitimate government must be democratic; and, with qualifications, I agree. (Let us say that in a democracy all nontransient adult residents are eligible to be citizens and each citizen is free to vote and run for office in free elections that determine who shall be lawmakers and top public officials.) More controversially, I hold that what renders the democratic form of government for a nation morally legitimate (when it is) is that its operation over time produces better consequences for people than any feasible alternative mode of governance. Christopher Griffin criticizes this purely instrumental account of the justification of democracy.1 His target is a 1993 essay by me that outlines a version of this approach.2 He also offers a brief sketch of an alternative line of argument to the conclusion that democratic government is uniquely morally legitimate. I welcome the stimulus to revisit this large and significant topic provided by Griffin’s interesting arguments. Griffin develops two arguments against my line on democracy. I shall argue that one of his arguments misfires and the other one, though it correctly challenges a genuinely confused train of thought, is not well aimed at any argument I ever advanced or have any interest in advancing. The end result is that the purely instrumental approach I favor emerges unscathed by Griffin’s arguments. This approach is still very much in the running and worthy of further development. The project of developing and defending the purely instrumental approach gets a further impetus from Griffin’s brief sketch of an alternative, because this sketch immediately reveals large defects that should send us running back to instrumentalism, which looks promising by comparison. # Blackwell Publishing, 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 1Christopher P. Griffin, ‘‘Democracy as a non-instrumentally just procedure,’’ The Journal of Political Philosophy, this issue; subsequent references to sections of this essay appear in parentheses in the text. 2Richard Arneson, ‘‘Democratic rights at national and workplace levels,’’ The Idea of Democracy, ed. David Copp, Jean Hampton and John E. Roemer (Cambridge: Cambridge University Press, 1993), pp. 118–48. I. PRELIMINARIES The instrumental approach to the justification of democracy might take a variety of forms. For my purposes it will be useful to distinguish two.3 Consider political procedures that issue in laws or public policies. Suppose one holds that typically when various alternative policies are proposed and a political decision procedure selects one to be enacted, the alternatives can be assessed as morally better and worse independently of the actual choice that the decision procedure reaches. A correctness account of political legitimacy asserts that a political decision procedure is morally legitimate just in case it reaches the morally best decisions as to which policies to enact. An alternative correctness standard holds that a procedure for reaching political decisions is morally legitimate just in case it more reliably reaches the morally best among the alternative policies over the long haul than would any alternative feasible procedure that might be instituted instead. The correctness account is on the right track, but there is a better way. Consider a best results account of political legitimacy.4 It holds that a political decision procedure is morally legitimate just in case over the long haul it gives rise to results that are morally superior to the results that any feasible alternative procedure would produce. To see the difference between the correctness standard and the best results standard, imagine that the feasible alternatives in some setting are autocracy and democracy. Suppose that autocracy in these circumstances would tend to produce morally superior political decisions and hence a more just legal order than democracy. The correctness account then would favor autocracy over democracy. But let us stipulate further that besides the political decisions reached, the two political systems would differ in one other significant respect: the operation of democracy would tend to render citizens more virtuous on the average than they would be under the operation of autocracy. Suppose further that the superior virtue of democratic citizens leads to morally better outcomes all in all under democracy than under autocracy, even though the laws of the autocratic regime would be more just. The tendency to just acts induced by democratic virtue outweighs the tendency to just laws induced by autocratic wisdom. In this scenario a best results standard favors democracy whereas the correctness standard favors autocracy. But the wider view of the impact of a political decision procedure that the best results standard requires us to consider is more appropriate than the narrow fixation on the quality of political decisions themselves that the correctness standard imposes. DEBATE: PURELY INSTRUMENTAL DEMOCRATIC LEGITIMACY 123 3The account of the correctness account borrows from David Estlund, ‘‘Beyond fairness and deliberation: the epistemic dimension of democratic authority,’’ Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg (Cambridge: MIT Press, 1997), pp. 173– 204. 4The term is from Charles Beitz, Political Equality: (Princeton, N.J.: Princeton University Press, 1989), p. 20. These two varieties of purely instrumental accounts of the justifiability of political decision procedures are opposed by views that maintain that the intrinsic moral quality of political decision procedures determines or at least affects their justifiability. The mixed view holds that both the intrinsic quality of a political decision procedure and the consequences of its implementation affect its justifiability. The purely intrinsic account holds that the justifiability of a political decision process depends only on its intrinsic qualities and not at all on the consequences of its implementation.5 II. NO RIGHT TO POWER OVER OTHERS In my 1993 essay I asserted a particular version of a best results standard. In this version best results are identified with maximal fulfillment of significant individual moral rights. The political decision procedure that should be established is the one that in existing circumstances would maximize the fulfillment of significant individual rights over the long haul. The choice among democracy, monarchy, aristocracy, communist party autocracy, and other possible governance regimes is to be made by selecting the regime whose implementation would maximize the attainment of this moral goal. In this formulation I deliberately said very little about the content of individual moral rights. My idea was that believers in different views about the content of individual rights could agree that the choice of a political process should be made with a view to maximizing rights fulfillment. As so far stated, this characterization fails to qualify as a version of pure instrumentalism, because for all that has been said so far, a moral right to democracy might be included among people’s fundamental moral rights. To rule out this possibility in the course of offering support to the ‘‘maximize rights fulfillment’’ version of a best results approach, I stipulated that the rights that enter into the determination of best results do not include rights to power over others. Rights to power over others are in all cases derivative, nonfundamental rights. One has such a derivative right to power over others just in case assignment of the right maximizes fulfillment of the fundamental individual moral rights. Examples of rights to power over others would be the rights to exercise control as guardians that parents are thought to have over their own children, the rights that court-appointed guardians hold over individuals deemed incompetent to manage their own affairs, the rights that a judge has to control the conduct of a criminal justice proceeding, the rights that public bureaucrats have over the management of the agencies in which they hold office, and the rights that each voter has in a democracy. 124 RICHARD J. ARNESON 5A procedure may have extrinsic properties other than consequences, but I set these aside for purposes of this discussion. This stipulation is supposed to accomplish two things. First, I rule out the right to a democratic say (an equal vote in a democratic political procedure) as a candidate for the status of fundamental moral right. Second, I intend that the exclusion of the right to a democratic say is not arbitrary but part of a principled and reasonable minimal constraint on the content of fundamental moral rights. Whatever rights we deem fundamental, important to satisfy just for their own sake, ‘‘rights’’ or purported rights to exercise power over other people’s lives should not be included within the set of fundamental rights. It might seem odd to count the right to a democratic say as a right to exercise power over how other people are to live their lives. But my claim is that the oddity disappears after reflection. The franchise in national elections in a populous society grants the bearer of the franchise only a tiny bit of political power. There is the chance that one’s vote might be decisive in an election. Also, one’s vote may contribute slightly to the margin of victory of a candidate or a ballot measure, and the margin of victory may itself have some causal influence (deterring efforts to unseat the elected candidate or reverse the outcome of the ballot measure, for example). But the vote in a serious political election is one among many that together determine rules that constrain citizens’ conduct and life options in obvious and palpable ways. The vote gives each citizen of a democracy a tiny bit of the political power a dictator or powerful monarch possesses. Griffin objects that this argument fails because all rights confer on the right- holder power over the lives of others, so no ground has been supplied for demoting the right to a democratic say to a derivative or instrumental status. I suppose everything is like everything else in some way or another. But this does not obliterate all differences and distinctions. Some rights give one power or dominion over others, authority to direct their lives in certain ways. Some rights do not. To use the example of an institutional right, consider the contractually specified right of a manager to issue commands to subordinates (who do not have the reciprocal right to issue commands to the manager). Contrast this with the right of the subordinate to quit the firm at will. I say the right of the manager involves power or dominion over the lives of others, whereas the right of the subordinate to quit does not. I acknowledge this is a blunt distinction and there may be a gray area of rights that do not clearly fit on one side or the other of the line it draws. But since the right to a democratic say is not a borderline case but a clear case of a right that allows one to exercise power over others, the existence of a gray area does not threaten my use of the distinction. Suppose one insists that any right whatsoever gives some sphere of control to the right-holder and hence some power over others. The right to free speech gives one control over others to this extent—they may not interfere coercively if one is a willing participant as hearer or speaker in a free speech scenario. The right to freedom of thought gives one control over the rights of others to a limited extent—they may not coercively interfere in certain ways in the process whereby DEBATE: PURELY INSTRUMENTAL DEMOCRATIC LEGITIMACY 125 one’s opinions and convictions and attitudes are formed. This insistence might be sound reasoning or an instance of bad logic-chopping. For my purposes I do not need to decide this matter. Suppose in line with the insistence of the previous paragraph that there is no sharp distinction between rights that confer power over the lives of others and rights that do not. There is simply a continuum of possible cases ranging from a tiny bit of power or dominion to an enormous amount. (There may be several dimensions that enter into having power but for simplicity just suppose that power varies along a single scale. This simplification does not affect my argument.) It is important to realize that this supposition in no way undermines my claim that rights that involve power over others are among the nonfundamental rights and their existence, strength, and shape should be fixed according to what is maximally productive for fulfillment of fundamental rights. I can simply go along with the supposition and stipulate that the rights that are to count as involving (significant) power over others are those that lie above a certain point on this scale measuring extent of power. Where exactly one chooses to place this line does not matter so long as the right to a democratic say will be comfortably on the ‘‘involves significant power over others’’ side of the line. I need not claim this line is sharp, just that there is a morally significant distinction between a right that marginally involves power over others and a right that involves a significant amount of such power. Griffin concludes his discussion of this objection against my argument by claiming that my argument ‘‘presupposes that democratic rights are not fundamental; it does not demonstrate it’’ (section II). This is false. My argument provides a reason to classify the right to a democratic say as nonfundamental and moreover to assign this right to a class of purported rights that involve power over the lives of other people. Regarding this class of rights, I suggest that they should be assigned in order to maximize fulfillment of the fundamental rights. This argument just presumes that fulfillment of the fundamental rights is what matters morally and avoids controversial specification of what these rights in detail are. But I propose that whatever the fundamental rights are, they do not include rights to power over others, and whatever exactly the right to a democratic say amounts to, it falls squarely inside this group of rights that we have reason to characterize as nonfundamental. Why fuss about power or dominion over others? The conviction that drives my account is that one has legitimate authority to direct the course of other people’s lives by issuing commands they are compelled to obey or deliberately arranging their environment so that many otherwise eligible options for their life course are unavailable or unfeasible only if one’s exercise of these rights works out well for all concerned parties. Rights to power over others are rights to serve as steward for the interests of the affected parties. The moral test for the correct assignment of such stewardship rights is that they should be passed out so as to maximize fulfillment of the rights of those people affected by this rights assignment and exercise. 126 RICHARD J. ARNESON III. WHY MUST RIGHTS TO POWER OVER OTHERS MAXIMIZE GOOD CONSEQUENCES? This last claim has attracted criticism by Griffin and others.6 I claim that rights that involve power or dominion over other people, to be morally sound must be such that they maximize fulfillment of people’s fundamental rights. Griffin and others view this requirement as too strong. Instead they propose a weaker requirement: these rights must be such as to generate adequate fulfillment of fundamental rights. To see what is at stake here, consider the right that parents are usually thought to have to raise their own children as they prefer. Before a child reaches the age of adulthood, parents are thought to have extensive rights to control and direct the child’s life that other adults do not share. You as parents have the right to order your child to be at home an hour after school lets out but I as nonparent neighbor have no such right and no right to contravene your command in normal (non-life- threatening) circumstances. This is all part of the morality of common sense. Since these rights of parental control over children certainly fall into the class of rights that confer on the right-holder power or dominion over others, my claim regarding them is that they are justified just in case assigning these rights maximizes fulfillment of people’s fundamental moral rights. The parents’ rights are to be viewed as instruments to a greater good. This claim has provoked horrified responses. In an astute commentary on my 1993 essay published along with it, Robert Sugden writes that ‘‘at times, we find the authentic voice of Benthamite utilitarianism in Arneson’s essay—most notably in the chilling passage on the upbringing of children, where we are told that it is uncontroversial that natural parents’ having custody of their own children is of merely instrumental value.’’7 Since moral assertions that chill and horrify are probably controversial, I withdraw my confident assertion that my claim about rights to power in its application to parents and children is uncontroversial. But it still strikes me as true. This issue may be unavoidably murky to the extent that I nowhere commit myself as to the content of fundamental rights. It may be that the critics are supposing that according to my proposal parents’ heartfelt desires to care for their own children count for nothing in the determination of who has rights to act as guardians of children and that all that matters is what policy would work out for the best interest of the child. That is to say, the fundamental rights that we should be striving to fulfill here are being identified with the rights of children to morally decent education, socialization, care, and nurture. Griffin seems to be DEBATE: PURELY INSTRUMENTAL DEMOCRATIC LEGITIMACY 127 6Griffin cites Allen Buchanan and Thomas Christiano as sources of this objection, which he also endorses. In a commentary on Griffin presented at the 1999 Pacific APA meeting, Bruce Landesman raises a similar objection. 7Robert Sugden, ‘‘Justified to whom?’’ Idea of Democracy, ed. Copp, Hampton and Roemer, p. 149. characterizing my thought in just this way when he comments, ‘‘It seems wrong headed to say that the only justification parents have for raising their own children is that those parents are the best available’’ (section II). But this is a misconstrual or at any rate an extremely uncharitable reading of what my position comes to. Surely the fundamental rights at stake in the assignment of parenting rights extend beyond the fundamental rights of the children who will be affected by policy choice. They include the parents, other family members, the adults who would be guardians if the parents are bumped from this social role, ordinary members of society who suffer gains and losses later as a consequence of how well or badly the children in question are raised, and so on. I am not in fact a Benthamite but I am close enough to a fellow traveler of utilitarianism to suppose that people’s fundamental rights include rights to wellbeing and that the deep and strong desires of parents to parent their own children and of children to be connected to their own parents become important ele