Abstract
This paper argues that there is a tension between two central features of Dworkin’s partnership conception of democracy. The conception holds, on the one hand, that it is a necessary condition of the legitimacy of the decisions of a political majority that every member of the political community has a very robust right to publicly criticize those decisions. A plausible interpretation of this argument is that free political speech constitutes a normatively privileged vehicle for political minorities to become majorities, and therefore in the absence of freedom of speech minorities could not be rightfully compelled to comply with majority decisions. On the other hand, the partnership conception holds that properly exercised constraints on majority rule do not incur any moral costs. The no-moral-costs thesis is argued for on the basis that nothing of significance is lost when individuals’ influence on political decisions is diminished. However, the legitimacy argument for free speech assumes the significance of individual political influence, which the no-moral-costs thesis denies. Hence the tension.
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Notes
‘Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be’ (Dworkin 2006).
‘If weak or unpopular minorities wish to be protected from economic or legal discrimination by law—if they wish laws enacted that prohibit discrimination against them in employment, for instance—then they must be willing to tolerate whatever insults or ridicule people who oppose such legislation wish to offer to their fellow voters, because only a community that permits such insult as part of public debate may legitimately adopt such laws. If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to accept’ (Dworkin 2006).
Thomas Christiano discusses the absence of permanent political majorities as a precondition for the legitimacy of democratic rule on these grounds (Christiano 2008, pp. 288–299).
To be sure, an overall conception of the right to free speech includes more than stipulations regarding whether content-based restrictions of speech are justifiable or not. Notably, the limits of acceptable regulations of political campaigns in general and of electoral speech in particular are controversial issues. In other writings, Dworkin claims that restrictions on campaign spending are permissible (or even required) by the ideal of political equality (Dworkin 2000, pp. 184–210). This suggests that such restrictions do not undermine the legitimacy-conferring capacity of free speech. However, he does not clarify whether systematic inequalities in different social and political group’s material resources to advocate their views undermine legitimacy in the same way as content-based restrictions do. If the reading of the legitimacy argument suggested here is accurate, and the significance of free speech from the point of view of legitimacy resides in its role in potentially rendering political majorities fluid, then such an extension of the argument appears well-motivated. However, if that is so, then the door may be open for further, very consequential extensions.
Jeremy Waldron may be the most prominent critic of countermajoritarian constraints within the liberal outlook (see Waldron 1999, pp. 209–312).
This account defines democracy entirely in terms of the character of the political decisions, without reference to how they are being made. However, at other places each citizen’s having an “effective say” in the political process is provided as one of the criteria of a political community counting as democratic, which is a constraint on procedure (see p. 12 bellow on this criterion). I would like to thank an anonymous referee for pressing me to clarify this point.
I find the term’aggregative’ better suited than Dworkin’s own’statistical’, and will use it occasionally.
Thomas Scanlon made a distinction between attributive and substantive responsibility. An individual may be assigned attributive responsibility for an act if it is appropriate to refer to that act as a basis of that person’s moral assessment, i.e. as a basis of praise or blame. Assigning substantive responsibility for an act to someone implies that it is fair if he is forced to bear the consequences of that act (Scanlon 1998, p. 248). Although Dworkin does not use any analogous distinction in his discussion of countermajoritarian constraints, in context it seems clear that what he has in mind in discussing the kind of responsibility relationship that is established in the right kind of community is of the substantive or consequential kind. If the right kind of community exists, it is fair to force members of the community to bear the consequences of the community’s political acts, even if they as individuals disagree with them. It would be perverse to hold that dissenting individuals can be morally blamed for wrongful political acts they disagreed with and protested against.
Note, however, that the three criteria establishing the right kind of community as suggested by Dworkin state different types of constraints regarding collective political action. Whereas the second and third (“stakes” and “independence”) requirements constrain the content of permissible decisions, the first (“part”) requirement constrains the range of permissible processes of decision-making (see also n11 above). One might suggest that the constitutional constraints necessary to honor the second and the third criteria may limit individuals’ ability to have an effective say in the decisions, in which case there are still moral costs incurred, even though they are internal to the three-criterion account of democracy. This may provide the basis of an argument against the no-moral-costs thesis that is independent of the considerations presented below. I am grateful to an anonymous referee for bringing this to my attention.
Note also that acceptance of countermajoritarian constraints in general will not provide such a reason either, because such acceptance is consistent with the claim that they involve moral costs.
Thus, the positive argument for the communal conception ultimately rests on Dworkin’s conception of justice. This is obviously not the place to explore that conception.
Consider an analogy from individual ethical convictions: if a certain form of life is publicly banned, it is little consolation for those who would pursue it that their liberty to pursue whatever conception of the good life is equal to every other citizen’s such liberty, since all can choose to pursue the same set of conceptions.
Dworkin’s view of political impact is more complex than what this summary suggests. He notes that in a representative democracy, equality of impact is unattainable, since public officials (law-makers, judges, central bankers) will have exponentially larger impact, through just how they act on their own, than private citizens. However, this does not render impact as a voter irrelevant, since in determining political majorities each individual counts the same, and it is the possible configurations of political majorities that are relevant from the point of view of assessing countermajoritarian constraints, at least on the statistical reading.
Let us for the sake of argument ignore the fact that at least part of the source of King’s greater influence was his eloquence rather than the moral quality of his views. And that source is available to some people with horrible views, but they don’t provide as effective examples as King does. A charitable reading of Dworkin’s point could be that other things being equal, correct moral views are inherently more persuasive than incorrect ones, and it would be regrettable if equality of political influence were to erase that advantage.
Most American liberals believe that banning abortion is an impermissible option and should therefore be made unavailable as an outcome of collective decision-making, while they believe many forms of regulating economic behavior is morally permissible (though some may be bad policy). Many of their conservative opponents hold the reverse view on these issues.
Those who think the correct view of constitutional constraints is wrong need not think that the policy it protects is unjust. They may think, for instance, that the policy protected from legislative change by judicial review is a worthy one, but it would not be unconstitutional to replace it with some alternative.
At this point it should also be noted that the logic of the legitimacy argument is inconsistent with the argument from insignificance. The former argument holds out the promise that some individuals’ political influence—through speech—can lead to a new majority, while the latter holds that individual political influence is negligible. But if it is negligible then it cannot have this legitimacy-conferring power.
Of course Dworkin might counter that political speech is morally protected also on grounds that are independent of its role as a possible vehicle of emerging new majorities. It is of utmost moral significance, for instance, that one can bear public witness on matters of public importance, simply in order to make a statement about herself, and not necessarily with a view to changing minds. This strikes me as both true and important. But the objection I am now considering is not about whether freedom of speech may be justified, but about whether and under what circumstances it can contribute to the legitimacy of majority decisions. I am grateful to Andres Moles for pressing me to clarify this point.
References
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Miklosi, Z. A Puzzle About Free Speech, Legitimacy, and Countermajoritarian Constraints. Res Publica 20, 27–43 (2014). https://doi.org/10.1007/s11158-013-9220-z
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DOI: https://doi.org/10.1007/s11158-013-9220-z