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?

Ideal and Non-ideal Theories of Justice

(Warning: 1500 words on a somewhat technical problem in political philosophy).

A couple of days ago I went to a talk about the distinction between ideal and non-ideal theory in contemporary political philosophy. The distinction is typically presented as a distinction between a theory that describes a perfectly or completely just society, and a theory that describes what justice requires in imperfect societies with varying levels of injustice in order to improve it (but not necessarily to make it perfect). There are more precise ways of articulating the distinction (see, for example, here), but probably the most common way of making it precise is the one that Rawls follows in his A Theory of Justice (where the terminology originates): namely, as a distinction between a theory that describes what justice requires when we can expect everyone or almost everyone to be well disposed to act justly ("full compliance" conditions, in the jargon) and a theory that describes what justice requires when we cannot expect everyone to do what justice requires, or to the full extent that justice requires ("partial compliance" theory). To use Rousseau's terminology, this would be a distinction between theories that take people "as they should be" (and can be, if the institutions of society were correctly ordered) and theories of justice that take people "as they are" (but try to suggest institutions that could improve them).

Rawls famously (or infamously, depending on whom you ask) presented his own theory as ideal ("full compliance") theory. But he did not think that ideal theory was unrealistic, or that it incorporated false assumptions about human nature. Since the development of the moral powers is dependent on institutions, and just institutions would reinforce the development of the moral powers, there is nothing "impossible" about full compliance: the right institutions would produce the maximal amount of compliance, because people who grow up in such institutions would develop the moral powers as much as possible (dispositions are "endogenous" to institutions, to use a bit of useful economic jargon). Of course, Rawls might be wrong about the effects of well-ordered institutions on human characters and dispositions, but the theory is not ideal because he assumes something false about human beings, but only because he assumes (on the basis of what he takes to be the best available knowledge about human moral development) something that does not obtain now but might obtain in a different institutional environment, namely, full compliance with the demands of justice.

Since we do not live under the best possible institutions, we need something like a theory of just transitions, i.e., a theory that prescribes or describes just changes along the path towards a well-ordered society; hence, according to Rawls, we need not just ideal theory but also non-ideal theory (which he did not propose to develop). Crucially, however, he argued that without ideal theory it would be impossible to properly develop non-ideal theory. Rawls' model of action seems to have been, like that of most philosophers, a model of making (in Arendt's terminology): we need some kind of ultimate blueprint if we are to be sure that we are moving in the right direction. But this assumption has been attacked by a number of people (as it was at the talk) who think that the (academically dominant) preoccupation with ideal theorizing has become a kind of scholasticism. The objection is basically that ideal theory is superfluous: we do not need ideal theory to tell us which injustices are important and need to be addressed immediately (e.g., slavery, which we might all agree is unjust – why would we need Rawls' theory of justice to tell us this?), and at any rate ideal theory is insufficient to tell us what to do in other cases (how does knowing what the ideal society look like help us figure out what to do about, e.g., female genital mutilation, if anything?).

There are a few obvious responses to this criticism. On one view, for example, ideal theory helps us clarify the values that should be guiding our actions in the non-ideal world: we need to be able, for example, to know what a commitment to "equality" or "freedom" really entails before we go around making changes to various existing social arrangements in their name. In this case ideal theory does not serve as a blueprint for (long-term) action, but rather as an exploration of the structure of our values and of the kinds of trade-offs among them that we should find permissible. But it occurred to me that one useful way of understanding the relationship between ideal and non-ideal theory is as a relationship between global theories of justice and local theories of justice.

A global theory of justice is a theory about the just arrangements affecting an entire social order (e.g., a country or the entire world): it prescribes changes to the entire structure of institutions that define a social order so as to make such an order just. A local theory of justice, by contrast, prescribes changes to specific institutions or practices on the background of a (e.g., a local theory of justice might be concerned with the rules of war, or with the problem of poverty in some particular context). Typically, global theories of justice will appear to be ideal relative to local theories in that global changes might seem to require many steps, each of which would be more or less likely to happen, which implies a low likelihood of eventual realization, whereas local changes might seem to require fewer steps, so they appear to be feasible. There is often a relatively clear path to implementation for the prescriptions of local theories of justice, whereas there is no such clear path for global theories. Moreover, global theories of justice may incorporate assumptions about human nature, the nature of justice, and about the possibilities of socialization, that are more uncertain than the assumptions that local theories of justice need to make; so, for example, we are less certain about whether any set of institutions can produce dispositions resulting in "full compliance" than we are that some set of institutions might produce the desired behaviour in some particular field of endeavour. From this point of view, we might assign a much lower probability of being true to any global theory of justice than we would to a local theory of justice.

But global theories of justice might still constrain local theories of justice. For example, it would count as evidence against a local theory of justice that it leads us to a situation where certain apparently desirable global changes seem impossible without injustice. Consider a concrete example discussed in the talk. Buchanan and Keohane have argued for a rule enabling some kind of preventive war, so long as it was waged by a suitably defined "reliable moral actor" or coalition thereof. This is a "local" theory of justice, intended to address a specific problem: Buchanan and Keohane think there are circumstances where it would seem to be a good idea to have the "good guys" wage war to prevent the "bad guys" from doing bad things, and they argue that these circumstances would need to be circumscribed through a specific institutional process. But it would also seem that if the rule proposed by Buchanan and Keohane were to become entrenched, it would prevent developments in the international system towards more "ideal" states (e.g., a Kantian cosmopolitan federation), since the rule seems ripe for abuse by militarily hegemonic powers (like the USA). So from the point of view of an "ideal" theory of justice, one would want to say something like "avoid entrenching a rule that is easily exploitable by military hegemons." This would only be evidence against the local theory of justice, not proof against it; given that the global theory is uncertain, no such proof would be given. But presumably a good local theory of justice would be properly informed by a global theory of justice insofar as it tries to avoid a merely "local" maximum of justice (which could not be abandoned for a more global maximum without injustice), or situations where local improvements in justice in one area (e.g., the rules of war) may lead to injustices in some other area (e.g., institutions concerning the distribution of wealth or income). (Note also that there might not be any "universal continuity" of justice: maybe there is no path towards a globally just society that would not involve injustice). To be sure we do not know much about the global maxima of justice (the states of maximal justice), if there are any such, so that for the most part we are reduced to arguing about local improvements in justice; but to the extent that we can constrain arguments about local justice and injustice byviews about what would be globally just, that would seem to be a good thing no? Anyway, the thought seemed more interesting at the time, but here it is. (I had some other thoughts about the "ought implies can" principle as well, but I will leave these to some other post).