Rawlsian Legislatures: A Modest Proposal

(Attention conservation notice: various harebrained schemes I cooked up preparing for a seminar on Rawls that appear to structurally mimic ideas about a “veil of ignorance.” Of purely theoretical interest.)

[Update 13 August: see also my further thoughts on these proposals here].

John Rawls’ A Theory of Justice famously introduced the idea of an “original position,” a hypothetical situation in which citizens would come together behind a “veil of ignorance” to select principles of justice that can regulate their common life. There are different ways of understanding the OP, but one useful way – which Rawls himself favoured later in life – is to imagine that the “contracting parties” in the original position are not the members of society themselves, but rather their representatives. Each of these representatives – modelled as rational negotiators – is then supposed to bargain for the best possible “deal” acceptable to the citizens they represent on the terms of cooperation in society, but without knowing which specific set of citizens they represent. This is supposed to ensure that the negotiating parties will only agree on principles that would be acceptable to all citizens as “free and equal.”  Leif Wenar in the Stanford Encyclopedia of Philosophy describes the basic point well:

The original position is a thought experiment: an imaginary situation in which each real citizen has a representative, and all of these representatives come to an agreement on which principles of justice should order the political institutions of the real citizens. Were actual citizens to get together in real time to try to agree to principles of justice for their society the bargaining among them would be influenced by all sorts of factors irrelevant to justice, such as who could appear most threatening or who could hold out longest. The original position abstracts from all such irrelevant factors. In effect the original position is a situation in which each citizen is represented as only a free and equal citizen, as wanting only what free and equal citizens want, and as trying to agree to principles for the basic structure while situated fairly with respect to other citizens. For example citizens' basic equality is modeled in the original position by imagining that the parties who represent real citizens are symmetrically situated: no citizen's representative is able to threaten any other citizen's representative, or to hold out longer for a better deal.

The most striking feature of the original position is the veil of ignorance, which prevents other arbitrary facts about citizens from influencing the agreement among their representatives. As we have seen, Rawls holds that the fact that a citizen is for example of a certain race, class, and gender is no reason for social institutions to favor or disfavor him. Each party in the original position is therefore deprived of knowledge of the race, class, and gender of the real citizen they represent. In fact the veil of ignorance deprives the parties, Rawls says, of all facts about citizens that are irrelevant to the choice of principles of justice: not only their race, class, and gender but also their age, natural endowments, and more. Moreover the veil of ignorance also screens out specific information about the citizens' society so as to get a clearer view of the permanent features of a just social system.

In Rawls’ view, the veil of ignorance can also play a role in the selection and evaluation of constitutions and laws. While the representatives of the citizens in the OP are supposed to select principles of justice in complete ignorance of the citizens’ class, gender, plan of life, and even the general features of their society, the veil can be “lifted” gradually to allow the representatives to agree on how these principles apply to more concrete institutions. This is what Rawls calls the “four-stage sequence”:

After agreeing on the two principles and a principle of just savings, the parties then proceed further through the four-stage sequence, tailoring these general principles to the particular conditions of the society of the citizens they represent. The veil of ignorance that screens out information about society's general features is gradually thinned, and the parties use the new information to decide on progressively more determinate applications of the two principles.

At the second stage the parties are given more information about the society's political culture and economic development, and take on the task of crafting a constitution that realizes the two principles. At the third stage the parties learn still more about the details of the society, and agree to specific laws and policies that realize the two principles within the constitutional framework decided at the second stage. At the final stage the parties have full information about the society, and reason as judges and administrators to apply the previously-agreed laws and policies to particular cases. When the four stages are complete the principles of justice as fairness are fully articulated for the society's political life.

Re-reading Rawls recently while preparing to teach a class, it struck me that it would be possible to mimic some of the structural features of this interpretation of the veil of ignorance in actual legislatures.

The simplest way to do this, it seems to me, would be to divorce electoral constituencies from accountability constituencies. Suppose legislators are elected in a relatively large number of small single-member constituencies (I’m thinking of a small place like New Zealand, where electorates are small, but one could imagine more complex schemes elsewhere). They go to a Parliament or Congress and negotiate laws as best as they can. At the end of their term, however, they must justify themselves to a randomly allocated constituency (not necessarily the one in which they were elected), which decides whether or not they can run for re-election. (A variant: the accountability constituency [also?] has the power to impose a financial penalty on the legislator if it finds the justifications for its actions lacking). The trick here is that the constituency that can hold the legislator accountable is not known in advance, either to the electors or to the elected MPs. If Rawls is correct, this should encourage elected legislators to negotiate “fair” legislative proposals –legislative proposals that are broadly acceptable to all in society.

An example may help. Imagine the electors for Wellington Central elect Grant Robertson their MP. At the end of his term, the Electoral Commission randomly assigns him a different constituency. Say he draws Auckland central, for example. Robertson then has to go to Auckland Central to defend his record in parliament; let’s say he’s given one month to make his case. Auckland Central then holds an “up or down” vote deciding whether or not he can run in the next election. If he’s voted down, he cannot run in that electoral period (though he may run in later periods – no permanent disqualification is envisioned here); otherwise, he gets to run again, if he so wishes, in Wellington Central.

One can easily imagine all kinds of problems with this system. (Consider the possibilities for strategic voting; and I’m sure the pros could come up with all kinds of ways of gaming this system). But I’m having way too much fun thinking about it to worry about these inconveniences right now. For example, imagine accountability constituencies that are functional or income-based rather than geographical. Legislators could be elected in standard geographical constituencies, but then randomly assigned to income-defined constituencies to make their case for being allowed to run for re-election. We might imagine that large “juries” of people from specific income quantiles could be empanelled, and MPs randomly assigned, at the end of their terms, to make the case for their policies to one of these juries in week-long trials. The juries then decide whether or not the MP is to be allowed to run again. Or imagine we got rid entirely of electoral constituencies. Instead, people would vote on the abstract composition of the legislature (expressing their preferences not only about the party composition of the legislature, as in closed list PR systems, but perhaps also their preferences about the level of education or income legislators must have, what percentage of legislators must be women, of a particular race, etc.). Political parties are then tasked to fill a legislature with these characteristics, but the legislators must then, at the end of their term, justify themselves to a randomly assigned constituency, which has the power to impose fines (and perhaps to award prizes).

Ok, so what’s the benefit of this, you may ask? If Rawls is correct, the fact that legislators would not know in advance to whom in society they would be held accountable would mean that they would be inclined to act in ways that are “publically justifiable” to all, including the “least advantaged.” What do people think?