Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

Reasoning is generally seen as a means to improve knowledge and make better decisions. However, much evidence shows that reasoning often leads to epistemic distortions and poor decisions. This suggests that the function of reasoning should be rethought. Our hypothesis is that the function of reasoning is argumentative. It is to devise and evaluate arguments intended to persuade. Reasoning so conceived is adaptive given the exceptional dependence of humans on communication and their vulnerability to misinformation. A wide range of evidence in the psychology of reasoning and decision making can be reinterpreted and better explained in the light of this hypothesis. Poor performance in standard reasoning tasks is explained by the lack of argumentative context. When the same problems are placed in a proper argumentative setting, people turn out to be skilled arguers. Skilled arguers, however, are not after the truth but after arguments supporting their views. This explains the notorious confirmation bias. This bias is apparent not only when people are actually arguing, but also when they are reasoning proactively from the perspective of having to defend their opinions. Reasoning so motivated can distort evaluations and attitudes and allow erroneous beliefs to persist. Proactively used reasoning also favors decisions that are easy to justify but not necessarily better. In all these instances traditionally described as failures or flaws, reasoning does exactly what can be expected of an argumentative device: Look for arguments that support a given conclusion, and, ceteris paribus, favor conclusions for which arguments can be found.

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Why Do Humans Reason? Arguments for an Argumentative Theory

This paper aims to explore an important concept in the work of the later Rawls: the idea of the reasonable. While the concept has its roots in both Aristotle and Kant, Rawls develops a unique account of the reasonable in the light of his theory of political liberalism. The paper includes Rawlsian responses to the practical challenges of radical democrats on the one hand, and epistemological challenges to the reasonable on the other. It concludes that Rawls’s account of the reasonable helps to bridge the gap between liberal theory and democratic practice.

Political liberalism: Reasonableness and democratic practice

This collection of essays, based on the Locke Lectures that Nagel delivered at Oxford University in 1990, addresses the conflict between the claims of the group and those of the individual. Nagel attempts to clarify the nature of the conflict - one of the most fundamental problems in moral and political theory - and concludes that its reconciliation is the essential task of any legitimate political system.

Equality and Partiality.

Preface ix CHAPTER I: Democratic Authority 1 CHAPTER II: Truth and Despotism 21 CHAPTER III: An Acceptability Requirement 40 CHAPTER IV: The Limits of Fair Procedure 65 CHAPTER V: The Flight from Substance 85 CHAPTER VI: Epistemic Proceduralism 98 CHAPTER VII: Authority and Normative Consent 117 CHAPTER VIII: Original Authority and the Democracy/Jury Analogy 136 CHAPTER IX: How Would Democracy Know? 159 CHAPTER X: The Real Speech Situation 184 CHAPTER XI: Why Not an Epistocracy of the Educated? 206 CHAPTER XII: The Irrelevance of the Jury Theorem 223 CHAPTER XIII: Rejecting the Democracy/Contractualism Analogy 237 ChAPTER XIV: Utopophobia: Concession and Aspiration in Democratic Theory 258 Notes 277 Bibliography 295 Index 303

Democratic Authority: A Philosophical Framework

DELIBERATIVE democracy has traditionally been defined in opposition to self-interest, to bargaining and negotiation, to voting, and to the use of power. Our assessment differs in two ways from the traditional one. First, we contend that self-interest, suitably constrained, ought to be part of the deliberation that eventuates in a democratic decision. Indeed, some forms of negotiation involving self-interest meet all of our criteria for ideal deliberation, in particular the criterion that in their ideal form deliberative methods eschew coercive power. We thus include such constrained self-interest and these forms of negotiation in our reformulation of the deliberative ideal, that is, the regulative standard to which real deliberations should aspire. Second, we argue for a complementary rather than antagonistic relation of deliberation to many democratic mechanisms that are not themselves deliberative. These nondeliberative mechanisms, such as aggregation through voting as well as fair bargaining and negotiation among cooperative antagonists, involve coercive power in their mechanisms of decision. Yet they can and must be justified deliberatively. Our ideal polity is diverse and plural. Its members both strive for

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The Place of Self‐Interest and the Role of Power in Deliberative Democracy*

Condorcet's Jury Theorem shows that on a dichotomous choice, individuals who all have the same competence above 0.5, can make collective decisions under majority rule with a competence that approaches 1 as either the size of the group or the individual competence goes up. The theorem assumes that the probability of each voter's being correct is independent of the probability of any other voter being correct. Contrary to several authors, the presence of mutual or common influences such as opinion leaders does not easily rule independence either in or out. Indeed, and this ought to be surprising,under certain conditions deference to opinion leaders can improve individual competence without violating independence, and so can raise group competence as well.

Opinion leaders, independence, and Condorcet's Jury Theorem

It is often supposed that a person is not required to do anything they cannot do. “Ought” implies “can,” as this is often put. Let’s accept that for the sake of argument. Still, it is not obvious that if I can’t muster the will to do something, then I can’t do it. An inability to will an action might not entail an inability to do the action, in which case the action might yet be required. I will discuss this question shortly. In any case, here is a related but different idea: even if it is not impossible to do whatever it is impossible to muster the will to do, perhaps it is still implausible to think one could be required to do what one could not muster the will to do. Perhaps we should accept that “ought” implies “can will.” If so, and if there are characteristic things that humans cannot muster the will to do, then human nature (in the sense of the limits of human motivational capacities) would stand as a prior set of facts that constrain what political philosophy can soundly prescribe or morally require. My thesis, simply stated, is that this is not so. If there are facts of human nature of this general kind, consisting in limits to what humans will be able to muster the will to do, they are not, simply as facts, constraints on what can soundly be prescribed or morally required. The reason is that agents’ abilities and inabilities to muster their will are subject to moral evaluation in their own right. Some such inabilities are

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Human Nature and the Limits (If Any) of Political Philosophy

Bernard Grofman and Scott Feld argued in the June 1988 issue of this Review that Jean-Jacques Rousseau's contributions to democratic political theory could be illuminated by invoking the theorizing of one of his eighteenth-century contemporaries, the Marquis de Condorcet, about individual and collective preferences or judgments. Grofman and Feld's claims about collective consciousness and the efficacy of the public interest provoke debate. One focus of discourse lies in the application of Condorcet's jury theorem to Rousseau's theory of the general will. In this controversy David M. Estlund and Jeremy Waldron in turn raise a variety of issues of theory and interpretation; Grofman and Feld then extend their argument, and propose clarifications.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0003055400088183

David Estlund

Papers

Democratic Authority: A Philosophical Framework

The Place of Self‐Interest and the Role of Power in Deliberative Democracy*

Opinion leaders, independence, and Condorcet's Jury Theorem

Human Nature and the Limits (If Any) of Political Philosophy

Democratic Theory and the Public Interest: Condorcet and Rousseau Revisited.