Ideas That Matter : Democracy, Justice, Rights 2018049121, 2018061769, 9780190904968, 9780190904975, 9780190904982, 9780190904951

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IDEAS THAT MATTER

Ideas That Matter : Democracy, Justice, Rights, edited by Debra Satz, and Annabelle Lever, Oxford University Press USA - OSO,

Copyright © 2019. Oxford University Press USA - OSO. All rights reserved. Ideas That Matter : Democracy, Justice, Rights, edited by Debra Satz, and Annabelle Lever, Oxford University Press USA - OSO,

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Ideas Tat Matter Democracy, Justice, Rights Edited by Debra Satz

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and Annabelle Lever

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Ideas That Matter : Democracy, Justice, Rights, edited by Debra Satz, and Annabelle Lever, Oxford University Press USA - OSO,

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above.

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You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Satz, Debra, editor. | Lever, Annabelle, editor. Title: Ideas that matter : democracy, justice, rights /​edited by Debra Satz and Annabelle Lever. Other titles: Ideas that matter (Oxford University Press) Description: New York : Oxford University Press, 2019. | Includes bibliographical references and index. Identifers: LCCN 2018049121 (print) | LCCN 2018061769 (ebook) | ISBN 9780190904968 (updf ) | ISBN 9780190904975 (epub) | ISBN 9780190904982 (online content) | ISBN 9780190904951 (cloth : alk. paper) Subjects: LCSH: Democracy. | Civil rights. | Human rights. | Sovereignty. | Globalization. | Cohen, Joshua, 1951–​ Classifcation: LCC JC423 (ebook) | LCC JC423 .I342 2019 (print) | DDC 320.01—​dc23 LC record available at https://​lccn.loc.gov/​2018049121 9 8 7 6 5 4 3 2 1 Printed by Sheridan Books, Inc., United States of America

Ideas That Matter : Democracy, Justice, Rights, edited by Debra Satz, and Annabelle Lever, Oxford University Press USA - OSO,

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Contents Acknowledgments vii List of Contributors ix Introduction 1 Debra Satz

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Part One  |  Reinvigorating Democracy 1. Saving Democracy fom Ourselves: Democracy as a Tragedy of the Commons 9 Archon Fung



2. Collective Reason or Individual Liberty: Deliberative Democracy and the Protection of Liberal Rights 36 Assaf Sharon



3. Rousseau and the Meaning of Popular Sovereignty 68 Stuart White



Part Two  |  Confronting Injustice 4. Without the Loving Strains of Commitment 91 Christopher J. Lebron



5. Deliberation and University Governance: Te Case of Brown University’s Diversity and Inclusion Action Plan 110 Richard M. Locke



6. Accountability in an Era of Celebrity 151 Martha C. Nussbaum v

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Contents

Part Three  |  Principles for an Interdependent World 7. Exploitation in International Trade 177 Helena de Bres 8. Sovereignty and Complex Interdependence: Some Surprising Indications of Teir Compatibility 201 Charles Sabel 9. Toward a Political Philosophy of Human Rights 231 Annabelle Lever

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Afterword by Joshua Cohen 251 Publications of Joshua Cohen 253 Index 261

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Acknowledgments

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i In pulling together this volume for publication, we have accumulated debts, which we repay here with our gratitude. In particular, we would like to thank Joan Berry of Stanford’s McCoy Center for Ethics in Society for all her help with the organization of the initial conference that were the occasion for these papers. Tanks as well go to Pam Goodman and Anne Newman for their help with logistics. Tanks to Meica Magnani, who undertook the task of formatting and indexing the volume. We are also grateful to our editor at Oxford University Press, Peter Ohlin, for his support of this project. Te Dean’s Ofce of the School of Humanities and Sciences at Stanford University provided support for the conference. We also wish to thank the authors whose work appears here, as well as their thoughtful commentators and many other conference participants, including Josh Cohen’s former dissertation students—​now accomplished professionals in their own right—​who traveled far and wide to attend. Finally, we thank Josh Cohen himself—​for his tremendous mentorship and support of each of us over the years, and for his example.

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Contributors

i Helena de Bres is Associate Professor of Philosophy at Wellesley College. Joshua Cohen joined the faculty at Apple University in 2011, and is also a Distinguished Senior Fellow at Berkeley, in the School of Law, the Department of Philosophy, and the Department of Political Science.

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Archon Fung is Academic Dean and the Winthrop Lafin McCormack Professor of Citizenship and Self Government at the Harvard Kennedy School. Christopher J. Lebron is Associate Professor of Philosophy at Johns Hopkins University. Annabelle Lever is Professor of Political Science at Sciences Po, Paris. Richard M. Locke is the Provost of Brown University and the Schreiber Family Professor of Political Science and International and Public Afairs. Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, appointed in the Law School and the Philosophy Department. Charles Sabel is the Maurice T Moore Professor of Law at Columbia University.

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Contributors

Debra Satz is the Marta Sutton Weeks Professor of Philosophy, and by courtesy, of Political Science at Stanford University. Assaf Sharon is Senior Lecturer in the Department of Philosophy, Tel Aviv University.

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Stuart White is Associate Professor of Politics and Tutorial Fellow in Politics, Jesus College, Oxford University.

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Introduction Debra Satz

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i The chapters in this volume originated at a conference at Stanford University in January 2017 that celebrated the work and contributions of Joshua Cohen. Cohen has shaped much of contemporary political philosophy, with contributions that span the nature of deliberative democracy, freedom of expression, the interpretation of Rawlsian theory, Rousseau’s thought, justice in the international realm, labor standards in supply chains, campaign fnance, and human rights. (Less canonically, he has written on Glenn Gould’s music and the making of Central Park, a glorious municipal project that exemplifes the compatibility of the creation of beautiful public spaces with mass democracy.) Cohen has trained and inspired scores of graduate students, myself included. Tese former students have not only established themselves throughout the academic world as formidable scholars but are also found in non-​governmental organizations (NGOs), in community organizations, and in government. Cohen is also known for his editorial leadership of the Boston Review, an important magazine of ideas and poetry. (He is the magazine’s co-​editor with Deb Chasman.) Trough Boston Review, Cohen has edited books on topics such as the tensions between multiculturalism and gender equality; the value of patriotism; the interplay between race and mass incarceration; and the ethics of climate change policies, among many other subjects. While each of the chapters in this collection stands on its own, Cohen’s spirit animates them all. 1

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What spirit is that? Specifcally, these chapters are committed to the idea that the analytical work done by philosophers and by philosophically oriented social scientists matters to our shared public life and to democracy itself. Such work can illuminate the values that underlie political disagreement, push to enlarge the space of possible policy options, and guide public reasoning. Each chapter brings imagination and critical reason to bear on perplexing problems in our world—​problems such as the fragility of democratic institutions, the place of domestic sovereignty in a globalizing world, and the persistence of racial injustice in democracies. Rather than seeing these problems as intractable, the volume’s authors seek to ofer, if not solutions, then grounds for reasonable hope. Although the authors remain aware of the difcult constraints and trade-​ofs that must sometimes be confronted, these chapters present ideas that matter to us—​ideas that can guide us in understanding what we can and should do in response to pressing problems. In so doing, the authors, following Cohen, reject the thought that politics is nothing but a realm of power. It makes sense to think of these chapters as centering on three ideas. Te frst idea is about democracy, and specifcally about reinvigorating democracy—​improving collective decision-​making by free and equal citizens. Democracy can, of course, be understood in diferent ways: as voting, as “government by discussion,” or as a form of bargaining among interest groups. Archon Fung’s chapter explores how even a less robust form of democracy than government by discussion nonetheless requires ethical norms to sustain it. Tese norms apply not only to politicians but also to the media, to the government’s bureaucracy, to NGOs, and to citizens. Picking up a theme that goes back at least to Aristotle, Fung argues that laws alone are not enough for democratic politics; we need morally motivated citizens, as well. Assaf Sharon’s chapter implicitly grants this point, but sees a tension between the ethical norms needed to sustain deliberative democracy and the value of freedom of expression. He worries that in an age when information is fragmented and many citizens lack the tools to evaluate evidence, people are too easily swayed by hate speech and infammatory images and memes. Te marketplace of ideas under such conditions is likely to lead citizens to endorse policies and practices that are not consistent with democratic self-​rule—​for example, policies which target racial and ethnic minorities. Institutions need good citizens, and good citizens need to be created and reproduced; this may involve more restrictions in the realm of speech than liberals are usually comfortable with. More optimistically, the chapter by Stuart White explores institutional responses to democratic decay. White, drawing on some ideas of Rousseau’s, explores the uses of constitutional conventions and popular referenda as devices for reanimating popular control. While such devices have well-​known risks, White sees promise in their use as ways of increasing the voice of ordinary citizens.

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Te chapters in part I present institutional innovations and normative principles that deserve greater consideration in public discussion. Josh Cohen’s work itself is full of ample evidence of such proposals, ranging from his earlier work with Joel Rogers on associational democracy to his more recent work with Chuck Sabel on new forms of global governance. Te second part of this volume explores the importance of, and various paths for, confronting injustice. What reason do those who have been systematically excluded from democracy’s promise have to obey our country’s laws or work together with others who have turned a blind eye to their situation? Chris Lebron harnesses James Baldwin’s idea of love—​not as an unconditional given but as a substitute for anger by those with a justifed grievance against complicit benefciaries of injustice. Moreover, the love Baldwin advises has a critical edge: its function is to help black people live in unjust circumstances and to help white people come to appreciate the humanity of their fellow citizens, as well as to understand white complicity as a part of the transitional path to reconciliation and redress. Richard Locke, the provost of Brown University and an expert on labor standards, shows in his chapter how structured conversations among diverse groups can aid in imagining and constructing policies of rectifcation and inclusion. Acknowledging the unequal positions of provost, faculty, students, and staf, Locke sees in deliberation a tool for hammering out shared goals and exploring the best means to achieve those goals. He holds up Brown’s example of deliberative discussion in the face of legacies of racial injustice that persist in our educational institutions as a model for how we can move forward in responding to these legacies. Martha Nussbaum’s chapter looks at another area where the promise of equality remains unfnished business. Despite progress in improving women’s civil and social status, women remain disproportionately the victims of sexual violence. Laws have evolved in some positive ways, but there is an underlying sexist culture in almost all societies. Tat culture ofen portrays men’s sexual urges as beyond their control. To the extent that rape and violence are viewed as such, it will be difcult to hold men accountable. Nussbaum shows that the problem of accountability is exacerbated when big money and celebrity are involved. To combat sexual violence, we have to work on both the legal and the cultural fronts; we must change norms, as well as formal rules. Te chapters in part II explore the place of emotions, social norms, and culture in democratic politics, showing when and how these might enter into deliberations, sustain people in the face of injustice, or lead us in politically dangerous directions. Tese chapters thus pick up another theme in Cohen’s work: the role of institutions and norms as mutually reinforcing. Taking people as they are, these chapters also show us what we might realistically become and ofer us ways forward—​ways of

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reforming our practices and motivations in the service of creating a fair and decent society. Ideas presented in the third part of this book might be understood loosely in terms of political principles and values for an interdependent world. Where some modern theories of justice take the nation or the state as the scope for principles of distributive justice, the rise of new institutions has put pressure on that bounded conception. Increasingly, forms of cooperation are emerging outside the state. Helena de Bres argues that there are principles of fairness that apply to the realm of trade, that trade is not an arena where mere might makes right. At the same time, she argues that attempts to locate these principles with respect to exploitation are unsuccessful. Such attempts are either over-​or under-​inclusive. Exploitation certainly can occur in trade agreements, but not all exploitative trades are objectionable nor are all objectionable trades exploitative. Some have argued that globalization threatens national sovereignty. Tis is because global rules—​either by the World Trade Organization (WTO) or by trade agreements—​impose constraints on national autonomy. Charles Sabel draws on emerging practices in inter-​state regulatory agreements to show that there is a place for both shared rules and diferential practices among countries. Tese new forms of regulation in sectors such as civil aviation or food and pharmaceuticals recognize the equivalence of regimes that are not strictly identical. As Sabel notes, these emerging institutions of regulatory equivalence are a kind of existence proof for the possibility of integrating democracy and normative engagement that goes beyond the nation-​state. In the volume’s concluding chapter, Annabelle Lever considers whether human rights can be a tool to extend democracy in a world that includes many nondemocratic nations. She shows why traditional attempts to fx the limits of human rights—​in a conception of human nature or in a conception of simple international agreement—​ fail. Because limits on human rights are less fxed than has been imagined, and because not all currently recognized such rights are equally important, there is work to be done. She suggests that accounts that focus on the “inclusion” aspect of human rights can go some way toward shaping the contours of our attractive theory of human rights. Te ideas in part III fnd resonance in Cohen’s work on the nature of human rights, global regulations, and the shifing and open nature of what is possible. So, we have three themes presented here:  of reinvigorating democracy, of confronting existing injustice, and of fnding political principles and values for an interdependent world. Taken as a whole, the chapters in this volume establish that political philosophy has much to contribute to current practice and aspirations—​in America and abroad. While there are many essays and books that explore ideas from

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political philosophy, there are few which are framed so as to address existing social problems and which engage so closely with the best social science research. I believe that too much contemporary work in political philosophy is written for narrow specialists. By contrast, the chapters in this book, written by experts in their felds, employing nontechnical language, take inspiration from Josh Cohen’s many contributions to address central and timely issues in public morality and politics. Believing that our world’s future is still open, we hope these chapters can contribute to its improvement. Debra Satz Stanford, California

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PART ONE Reinvigorating Democracy

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1 Saving Democracy from Ourselves Democracy as a Tragedy of the Commons

Archon Fung

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1.1  INTRODUCTION: DEMOCRACY AS A TRAGEDY OF THE COMMONS The continuing success of democratic governance institutions depends upon the willingness of those who govern—​and in turn those who are governed—​to restrain the pursuit of their own self-​interest for the sake of preserving and improving those institutions.* Te notion that citizens have moral obligations that fow from their participation and membership in democratic society is familiar to democratic theorists and political philosophers. My contribution is not primarily philosophical; I do not make much progress on whether these obligations are best justifed by a notion of fair play or through a conception of citizens as members of a political society or a deliberative democracy.1 Instead, I would like to clarify some important responsibilities of specifc actors in modern societies from the consequentialist perspective of what they should to do if they don’t want to lose their democracy. I explore the ethical responsibilities of three diferent kinds of actors in modern democracies: politicians, media professionals, and citizens themselves. Whereas we ofen think of the primary democratic obligation as obedience to law or perhaps participation in the democratic process—​ minimal levels of responsibility—​I argue that healthy democracy requires us to act in ways that are substantially more demanding. 9

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Tink of a democracy as a common-​pool resource like a fshery. We all beneft from the existence of democratic institutions. Indeed, our very lives and fortunes depend deeply upon their continued operation. As with a fshery, however, each of us has a powerful temptation driven by self-​interest to take from the commons at unsustainable levels. If we fail to restraint ourselves, then we deplete the commons. Because we have not provided for it, it will no longer provide for us. Elinor Ostrom, the great scholar of common-​pool resources, saw civic education as one key to solving democracy’s collective-​action problems:2

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At any time that individuals may gain from the costly action of others, without themselves contributing time and efort, they face collective action dilemmas for which there are coping methods. When de Tocqueville discussed the “art and science of association,” he was referring to the crafs learned by those who had solved ways of engaging in collective action to achieve a joint beneft. Some aspects of the science of association are both counterintuitive and counter intentional, and thus must be taught to each generation as part of the culture of a democratic citizenry. Tis metaphor of democracy as a common-​pool resource departs from some more familiar ways of thinking about our democratic responsibilities. By contrast, consider the kinds of duties that fow from a notion of fair play in a society governed by just democratic institutions. First, the image of “fair play” suggests that violators cheat each other when they fail to do their part—​for instance, by not paying their taxes. Compliance is the usually the norm. For common-​pool resources, such as a fshery or the carbon capacity of the earth, widespread violation may be even more common than compliance (we all probably drive too much). Second, the notion of “fair play” evokes a certain clarity. We know when we are playing fairly and when we aren’t. Perhaps this is because there are clear rules in the form of laws and norms to guide us. Maintaining a common-​pool resource, on the other hand, is a more ambiguous matter. It is ofen difcult to know what levels of fshing are sustainable or how much driving is too much, how to create and monitor that norm, and how to mitigate or repair the damage once it has been done. Tird, the common-​pool analogy introduces the notion of cumulative damage. When violators fail to do their part, they pollute a well of collective resources that has been built up over time through the joint activity of all. Tose resources include citizens’ trust in institutions, politicians’ habits of compromise and deliberation, and regard for a system of democratic inclusion. Te incremental efects of that pollution are difcult to detect and by the time the damage is evident, it may be too late to repair.

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Finally, and perhaps most signifcantly, we rely largely on institutions and laws to enforce the requirements of fair play. Well-​designed institutions and regulations are also necessary for the preservation of common-​pool resources. But problems with common-​pool resources ofen emerge not because of the widespread violation of laws and social norms. Te temporal order is reversed: we ofen notice that common-​pool resources are in danger of being depleted, and then we adjust our laws and norms to regulate social behavior in ways that protect those common-​pool resources. When we, socially speaking, fail to produce those new laws and norms, we destroy the common-​pool resource—​whether a fshery, a forest, or climate itself. In the protection of common-​pool resources, laws work with ethics and norms in two ways. First, changes in ethics and norms seem likely to precede changes in laws because popular sentiments seem apt to generate the political will for legal reforms. Applied to the case of democracy, it seems to me that institutional reforms such as campaign fnance reform are unlikely without frst increasing the popular, civic commitment to the health of our republic. Second, laws and norms work together to reinforce professional and civic behavior that sustains common-​pool resources. Neither alone is likely to be sufcient. Refect upon the considerations that prevent you from throwing an empty water bottle out of your car window. Perhaps they are a complex combination of your own internal code and taboos, social sanctions, compliance with anti-​littering laws, and fear of detection and punishment by the highway patrol? Tis chapter is occasioned by worrisome trends in the health of governance in the “mature” democracies, and in particular in the United States. Tese patterns include increasing political polarization at the mass and elite levels, disafection of citizens from politicians and political institutions, incumbent entrenchment, legislative gridlock, and fragmentation of the public sphere. Tese changes have occurred arguably without severely or obviously violating basic democratic norms. Yet, the aggregate efect of these trends may have been to reduce governance in America to a hollow shell of democracy. My argument begins with a basic account of democratic governance that many diferent kinds of democrats should be able to endorse. Tis account advances two kinds of legitimacy:  procedural and output. Te following section develops fve sociopolitical “underwriting” conditions that I regard as necessary for the formal procedure to produce those two kinds of legitimacy. Tose conditions are (1) commitment to process over outcome, (2) social coherence, (3) a spirit of compromise, (4) responsive government, and (5) epistemic integrity. Te following three sections then describe how diferent kinds of actors in the democratic systems—​politicians, media professionals, and citizens—​have powerful self-​interested motives to “pollute the commons” of democratic procedures and their underlying conditions. For the

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most part, these polluting activities are not wrong in the sense that they violate the liberty of others or violate structural democratic norms. Nevertheless, these activities have severely eroded the quality of democracy and may eventually lead to its breakdown. Each of these sections ofers the beginnings of a role-​specifc account of the ethical responsibilities—​the civic duties—​that these actors ought to embrace in order to make our democracy successful.

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1.2  LOWEST COMMON DENOMINATOR DEMOCRACY 1.2.1  A Basic Formal Procedure A very basic notion of democracy begins with four formal procedural components. First, democracy begins with a group of people—​the demos—​who compose a political association. Pluralism is the second component: those individuals have diverse values and interests that may confict with one another. Members of the political association agree to advance their interests and regulate their interactions through a government that makes various laws and policies in ways that give citizens equal consideration. Finally, in part to ensure equal consideration, the individuals in the demos participate as political equals in making those laws and policies. Tis account is meant to be basic enough to accommodate many diferent conceptions of democracy. For minimal democrats such as Joseph Schumpeter or Adam Przeworski,3 political equality requires little more than free and fair elections in which citizens have the opportunity to select the team of elites that will govern for some term. For aggregative democrats, the relationship between political equality and government is more demanding. Democratic procedures such as referendums, elections, and representation tally up the interests and preferences of individuals—​ respecting political equality because each counts for one and none for more than one—​in order to generate social choices about policies for government to implement. In deliberative democracy, the connection between politically equal citizens and government is even more demanding. Citizens must constrain their public positions and preferred policies to those that they can justify to other citizens. Public deliberation requires citizens to ofer other citizens—​especially those with diferent interests and values—​reasons why they too should accept their proposed laws and policies. Others must take these reasons seriously by modifying their own positions accordingly. Joshua Cohen writes that “Deliberation is reasoned in that the parties to it are required to state their reasons for advancing proposals, supporting them, or criticizing them. Tey give reasons with the expectation that those reasons (and not, for example, their power) will settle the fate of their proposal.”4 In a deliberative democracy, the institutions that connect citizens to one another and to

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their government must facilitate this kind of public reasoning and then harness the actions of government to its results.

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1.2.2  Legitimacy: Procedure and Output, Normative and Sociological Ideally, these formal democratic procedures generate laws and policies that are legitimate in two ways. First, citizens accept their government as procedurally legitimate because they have enjoyed opportunities to participate in determining its policies as political equals. Second, citizens regard the actions—​the outputs—​of their government as legitimate because the government acts afer duly considering the interests and views of citizens in electoral and deliberative processes. Accounts of democracy ofer diferent notions of “due consideration.” For minimal democrats, due consideration requires only that government be steered by the team of elites that prevailed in the last election. For aggregative democrats or pluralists, government ought to act according to the interests and preferences of citizens, perhaps as manifested through election results and fair bargaining processes. In doing so, laws and policies advance citizens’ welfare and desires in the political domain. For deliberative democrats, output legitimacy is secured when government acts in fdelity with the public reason that citizens exercise in a wide range of social and political arenas. Many analysts of legitimacy make a critical conceptual distinction between normative and sociological legitimacy. Standards of normative legitimacy establish the conditions under which a democracy regime ought to be considered legitimate. For example, are citizens treated as equals? Do laws and policies result from appropriate consideration of interests (in aggregative accounts) or reasons (in deliberative accounts) of citizens? Te question of sociological legitimacy, by contrasts, asks whether citizens actually, as a matter of fact, regard their system of government as legitimate. Normative legitimacy does not necessarily confer sociological legitimacy and most citizens can (sociologically) regard their regime as legitimate even if that regime does not deserve (normatively) to be regarded as legitimate. In this conceptual bifurcation, political philosophers typically focus on normative legitimacy and political scientists and sociologists on the empirical dimensions of legitimacy. Te fve “underwriting conditions” described in the next section are largely empirical conditions:  for example, whether citizens regard the integrity of the governing process as more important than obtaining their preferred policy outcomes, whether society is divided against itself, and whether government is responsive to the views of citizens. Tough empirical in character, these conditions underwrite both the normative and the sociological democratic legitimacy of a regime. Tat

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is, the institutions of a regime are unlikely to operate in ways that are normatively legitimate—​say, on an aggregative or deliberative account—​unless the underwriting conditions obtain. Furthermore, most citizens are unlikely to actually regard their regime as legitimate in the absence of these underwriting conditions. 1.3  UNDERMINING DEMOCRACY’S UNDERWRITING CONDITIONS Formal procedures will not by themselves successfully secure either procedural or output legitimacy. Certain vital normative commitments and sociopolitical conditions underwrite the success of those formal procedures. I believe that these conditions are being undermined by mass and elite actors across the American democratic system. Tough these trends have been building for several decades, my focus on these empirical conditions is in part an efort to characterize and explain the bitterness of the 2016 American general elections and their afermath. Tis section examines how fve such conditions are crucial to sustaining democracy but now are in jeopardy. Tose conditions are: (1) regarding democratic processes as more important than outcomes, (2)  social cohesion, (3)  governmental responsiveness, (4) the spirit of compromise, and (5) epistemic integrity.

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1.3.1  Te Priority of Procedure: Commitment to Democratic Process over Partisan Outcomes Most fundamentally, democracy requires citizens and ofcials to abide by democratic procedures even if they fail to achieve their preferred policies or the results that they regard as supported by the best reasons. For all democrats, even minimalists, this commitment takes the form of the basic principle of ballots over bullets. Tat principle is what separates the most minimal democracy from a transition back to authoritarianism, in which one set of political elites refuses to accept the results of free and fair elections. When losing candidates congratulate winners and deliver gracious concession speeches, they perform rituals that demonstrate and consolidate their normative commitment to the democratic process over the outcomes that they fought hard to achieve. When citizens fail to abide by this commitment, they no longer regard democratic procedures as sufcient to generate governmental legitimacy. Tis may be because they regard their preferred outcomes as more important than the procedures. Tey may regard the other side’s views—​or simply the other side—​as odious and intolerable. In this case, they deny the political equality of other citizens because they refuse to regard others’ input into the democratic process as equal to their own.

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Tese failures amount to the erosion of a central tenant of democracy: the priority of procedure. Public opinion research provides indirect evidence that the priority of procedure may be fagging in American democracy. Te Pew Research Center reports that the percentage of Americans who regard the other party as a fundamental threat has been growing steadily over the last decade. In 2014, 35 percent of Republicans saw the Democratic Party as a “threat to the nation’s well-​being” and 27  percent of Democrats regarded Republicans that way.5 Perceptions of the other political side have grown even more negative. In an October 2017 report, the Pew Research Center reported that “about eight in ten Democrats and Democratic-​leaning independents (81%) have an unfavorable opinion of the Republican Party” and that “81% of Republicans and Republican leaners have an unfavorable impression of the Democratic Party.”6 For citizens who regard the other side as a threat to the political association itself, commitments to diferent parts of the basic democratic process outlined here—​ preservation of the political association versus abiding by the results of an election that regards citizens as equals—​come into confict when the other side wins. Citizens or political elites might regard existing procedures of democracy as so fawed that they confer little legitimacy on winning candidates or issues. Perhaps this is what Donald Trump had in mind when he argued throughout 2016 that “the system is rigged” against him owing to large-​scale voter fraud. Tis echoed a note that John McCain sounded in the 2008 election, when he said in a presidential debate that the organization ACORN (Association of Community Organizations for Reform Now) may be “now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.” But procedural criticisms are not limited to the political right. Liberals, too, believe that voting is rigged through voter suppression and disenfranchisement eforts. A large majority of Americans—​85 percent in recent opinion polls—​believe that “money has too much infuence on elections.” In the same poll, two-​thirds of respondents believe that “the wealthy have more infuence on elections” and thus that the principle of political equality is widely violated.7 To the extent that citizens regard the existing procedures as fawed in this way, they regard their democracy as fawed. At the limit, political procedures do not deserve priority because they have lost democratic quality. 1.3.2  Social Cohesion Social cohesion is a second condition of successful democracy. Te procedural account just described requires that citizens constitute—​and regard themselves

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as constituting—​a single political association. Even minimal democrats require some cohesion. In a divided society, diferent parties may stand for stable sectarian interests. In the limiting case, those sections are better of with independent governments rather than with one or other half of the population lef out or, worse still, some minority in permanent political subjection. Aggregative democrats require a level of cohesion sufcient for citizens (and elites) to regard the interests and views of others as worthy of equal consideration. Deliberative democracy requires a greater level of social cohesion still—​citizens must be able to appreciate the reasons ofered by others and must be willing to alter their own views in light of those reasons. Christopher Hayes describes how the political association of democracy can be divided in two diferent ways:  horizontally and vertically.8 In the United States, horizontal social division takes the form of popular political polarization between lef and right, liberal and conservative. Tough political science research is not conclusive and many Americans still lie in the middle of the political spectrum,9 there is mounting evidence to show that Americans who care about politics are becoming more powerfully polarized. Tis is true at both the popular level—​as measured in public opinion polls and voting behavior—​and the elite level among political ofcials. In the most familiar form of political polarization, divisions over policy positions—​such as the confict between lower taxes and better public services—​ intensifes. While that kind of social distance makes bargaining and negotiation more difcult, it does not pose a fundamental challenge to basic democratic governance. Political scientists such as Marc Hetherington and Shanto Iyengar, however, argue that there is a second variety of “afective polarization” that is even more noxious for democracy.10 Afective polarization is the polarization of political sentiments. When citizens are afectively polarized, they actively dislike those who hold opposing political beliefs. One measure of afective polarization is evident in opinion polls that ask citizens about the intensity of their likes (or dislikes) of members of the same (or different) political persuasions, viewed on a “warmth” scale where 50 indicates neutral feelings, 100 is very cold, and 0 is very cold. Over the last forty years, Americans have remained consistently warm toward members of their own party. However, their feelings about the other party—​Democrats’ feelings about Republicans and vice versa—​have cooled by 20 percentage points over the same period.11 Te 2014 Pew Research Center study cited earlier found that 30 percent of people who are consistently conservative would be upset if someone in their family married a Democrat and 23 percent of consistently liberal people would be very upset if someone in their family married a Republican.12

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Afective polarization creates profound problems for democracy because, at the limit, it transforms a give-​and-​take liberal democratic politics into a Schmittian politics of friend versus foe.13 In a context that is afectively divided in this way, opponents’ losses are not merely incidental; they are also constitutive of political victory. It becomes important to defeat alternative policy proposals not because they harm one’s interests—​they may even advance them—​but simply because they are advanced by opponents. While the minimal account of democracy may be able to tolerate afective polarization, such polarization is incompatible with the mutual-​gains negotiations that pluralism requires and with the exchange of reasons that is central to deliberative democracy. In addition to horizontal polarization between lef and right, there is likely an increasing vertical polarization that separates economic and political elites from everyone else. Increasing inequality of income and wealth provide the material basis for this vertical separation. Social scientists have not yet provided an updated account of contemporary American elitism as powerfully coherent as C.  Wright Mills’s Power Elite, but the accounts of journalists like Christopher Hayes and Chrystia Freeland,14 political scientists Benjamin Page and Martin Gilens,15 and economists like Tomas Piketty16 are beginning to paint a disturbing picture of an economic and political elite that lives very diferently from the vast majority of Americans, that exercises enormous economic and political power, and whose members may share more in common with one another in terms of interests and political views in ways that transcend the ideological diferences between conservatives and liberals. Te existence of such an elite clearly threatens the principle of political equality. It is difcult under the best of circumstances to insulate political decisions from the infuence of unequal economic resources. Tat difculty grows as inequality increases. Separately, when political ofcials come mainly from an elite socioeconomic class or aspire to join that class afer they serve in government, those who govern the democracy are not of the people and government is not directed by the people. At best, they govern for the people. Tat basic fact poses problems from the perspective of descriptive representation. In terms of the formal democratic procedure described earlier, government by elites challenges equal consideration of interests. Growing social distance between elites and everyone else makes it difcult for those who govern to “climb the empathetic wall,” as Arlie Hochschild put it in another context. It becomes difcult for them to know the interests and perspectives of those who inhabit entirely separate social worlds; and it becomes difcult to sense how the policies that governors promulgate, as well as the reasons motiving those policies, would be received by them. At worst, elites govern for themselves, making laws and policies that beneft other elites and, consequently, are unresponsive to the opinions or interests of the majority of citizens.17

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1.3.3  Spirit of Compromise A “spirit of compromise,” in the phrase of Dennis Tompson and Amy Gutmann, is a third important condition for the success of democracy.18 Te fact of pluralism in society, and therefore among political ofcials, generates deep disagreements at every stage of the governing process. In complex contemporary political systems, collective action requires forging agreements because power and “veto points” are widely distributed within political and administrative organizations and across them. Without the skills or the will to reach agreements that overcome diferences of principle and value, excessive discord paralyzes democracy. Paralyzed government truncates the democratic process. Diferent conceptions of democracy regard the purpose of political participation diferently: exercising infuence to determine an aggregate outcome, ofering reasons to adjudicate just policy, providing inputs for equal consideration, or merely selecting which team of elites to rule. Without a spirit of compromise, government can achieve none of these purposes and so lacks procedural legitimacy. On the dimension of output legitimacy, paralyzed government renders society hostage to status quo laws and policies. Because the world does not stand still awaiting democracies to get their acts together, status quo laws are arbitrary from the point of view of addressing social problems and needs. Paul Pierson and Jacob Hacker analyze this phenomenon as “policy drif.”19 In the face of new challenges from industrial transformation, fnancial crisis, a changing environment, and new security threats, prior laws and policies fail to produce the results that their supporters intended. Te drif of public policies away from the concrete circumstances they were meant to address amplifes their unintended and increasingly arbitrary consequences. Experts debate how today’s severe paralysis and gridlock compares to the past.20 But public perceptions are unequivocal. In 2016, public approval ratings of Congress had hit all-​time lows, ranging between 13 and 18 percent of survey respondents over the year.21 Gridlock, inability to compromise, and partisanship consistently register as the top reasons that Americans cite as problems with Congress.22 1.3.4  Government Responsiveness Government responsiveness is a property of well-​ functioning democracy. Responsiveness means that laws and policies grow from the participation of equal citizens. For pluralists and aggregative democrats, government should be responsive to the interests and preferences of citizens, as expressed through voting and other democratic processes. For deliberative democrats, government should be responsive to reasons generated from robust public deliberation. Lack of responsiveness removes both procedural and output legitimacy.

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Unresponsive government indicates that there are defects or blockages in different parts of the formal democratic procedure. It may be that some voices in the participatory process enjoy outsized infuence and so violate political equality. Or, it may be that the policymaking machinery of government is disconnected from processes of popular participation and instead is driven by expertise, political elites, or infuential economic actors who operate independent of the democratic process. Political scientists Martin Gilens and Benjamin Page have argued that the laws and policies of American government have been unresponsive to large majorities of the American population for some time.23 In Afuence and Infuence, Gilens fnds that for public policies on which there are systematic diferences according to socioeconomic status—​such as social security and health care—​government generally acts in accordance with the opinions of people at the top 10 percent of the income distribution. Government is not particularly responsive to people at the bottom 10 percent of the income distribution. Indeed, he fnds that public policies aren’t even responsive to opinions of the bottom four-​ffhs of the income distribution. Many Americans also perceive that their government has become very unresponsive. Te National Election Study found that in 1964, 64 percent of respondents thought that government was “run for the beneft of all the people,” while just 29  percent said that the government was “pretty much run by a few big interests looking out for themselves.” At that time, 77 percent of the public said they could “trust the federal government just about always or most of the time.” In 2015 surveys, 76 percent thought that government is run “by a few big interests” and just 19 percent said the government is run “for the beneft of all.” Just 19 percent also said that they can trust the federal government just about always or most of the time.24 1.3.5  Epistemic Integrity Epistemic integrity is a ffh sociopolitical condition for the success of democratic procedures. Some form of instrumental rationality is an ingredient in every account of democracy. Epistemic integrity is the condition that allows citizens and ofcials to reach understanding about the world to exercise that instrumental rationality. Even in most minimal forms of democracy, citizens ought to be able to know roughly what diferent leaders stand for and be able to assess how they have acted retrospectively.25 In the pluralist or aggregative mode, Dahl’s epistemic requirement is the condition of “enlightened understanding”: each citizen ought to have adequate and equal opportunities for discovering and validating . . . the choice on the matter to be decided that would best serve the citizen’s interests.26

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But individual understanding is insufcient for democratic legitimacy. Even without a full-​blown deliberative ambition, public discussion, dispute resolution, and efective action require those in a democracy to agree upon a basic stock of facts, inferences, methods of inquiry, and adjudication to settle diferences in many of those facts and inferences. Tat agreement, in turn, requires general acceptance of methods of scientifc, scholarly, journalistic, and policy inquiry. It also requires the experts and professionals designated to lead the inquiry to possess a certain integrity. In particular, citizens must be confdent that the purveyors of inquiries serve citizens in their desire to reach public understanding rather than advancing the sectarian interests of political partisans, economic elites, or simple self-​aggrandizement. In other words, citizens must be confdent that experts are not merely propagandists. Many factors conspire to undermine the epistemic integrity in American democracy. Perhaps most salient are several high-​stakes cases in which experts got it very visibly wrong. I’m thinking frst of the widely reported and widely accepted claims by Bush administration ofcials in the early 2000s that Saddam Hussein’s regime in Iraq possessed weapons of mass destruction. Tat claim was the lynchpin of a public case for the connections between Iraq, terrorism, and fundamental threats to the security interests of the United States. It was the foundation of the case for invading Iraq. Subsequent analysis has shown that media coverage closely tracked ofcials’ positions without casting much skepticism about either the factuality of the claims or the structure of the argument.27 Tose claims turned out to be false. Te second high-​stakes case was the fnancial crisis of 2007–​2008. In the early 2000s, most economic policy experts—​including most signifcantly the heads of the Federal Reserve—​and professionals at credit-​rating agencies thought that the housing market was sound. However, a small minority of economists saw trouble on the horizon.28 Tat fnancial crisis has been regarded by many as the greatest economic loss since the Great Depression in terms of its impact on fnancial markets, employment, and housing. Te third high-​stakes case was the near consensus among pollsters, journalists, political professionals, and academic observers, frst, that Donald Trump would not be the Republican candidate for president and, second, that he would lose the U.S. general election of 2016 to Hilary Clinton. Tese highly visible empirical errors, especially the frst two, led to policies that harmed many millions of Americans. Perhaps more important, all three coincide with a certain rationalizing self-​interest: the foreign policy agenda of the Bush administration, justifcation of regulatory and fnancial arrangements that suited fnancial policymakers and large industry actors in the 2000s, and bias (I’m talking here of empirical judgments about political realities

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rather than normative assessments of candidates) against an insurgent Republican candidate who prominently declared his loathing of conventional media and mainstream politicians of both lef and right. At the popular level, afective polarization and the decline of social cohesion also erode epistemic integrity owing to a psychological pattern called “motivated reasoning.” People tend to process evidence in ways that confrm their prior commitments. In the political context, partisans looking at the same information or making sense of the same experience may come to very diferent conclusions about who gets the credit or even whether the experience is positive or negative. Marc Hetherington has shown, for example, that Democrats and the Republicans evaluate the same period of economic performance very diferently depending on which party is in power. Under the Bush presidency of 2000 and 2004, for example, Republicans regarded the (same) economy as performing much more strongly than did Democrats.29 As political polarization becomes more pronounced, so too do these motivations of biased reasoning grow stronger. Te contemporary media environment likely reinforces this tendency. In this age of the pervasive informational choice in digital news, many Americans consume news and information from sources that reinforce their own beliefs and flter out disconfrming evidence. Tese self-​selected digital social networks create self-​confrming echo chambers.30 And, in the course of their ever more sophisticated eforts to bind us to them, internet platforms like Google, Facebook, and Twitter deploy algorithms to tailor the information each of us sees so as to best please us, which likely ends up reinforcing our prior views rather than correcting our errors or making us wiser.31 Te erosion of these fve conditions for the success of democracy has brought large, long-​term changes to American politics and perhaps other democracies. If that erosion continues, the processes by which we govern ourselves will be reduced to a hollow shell of democracy. In time we may lose even that. Tough some of the causes are structural and institutional, politics, structures, and institutions are themselves the consequences of our own choices writ large. Te rest of this chapter lays out some norms and ethics that begin to rebuild these conditions and strengthen the democratic process. In Teory of Justice, Rawls argues that some individuals in a democracy have a natural duty to support just institutions while others, by virtue of their roles, take on specifc obligations to support those institutions.32 Tink of the following sections as elaborating upon what some of those duties and obligations are in light of the basic formal account of democracy and the sociopolitical conditions discussed earlier.

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1.4  POLITICIANS AS CAMPAIGNERS At a briefng afer the 2012 U.S. presidential election, campaign managers from both the Romney and the Obama campaigns bragged about their sophisticated use of voter data to micro-​target their supporters. I had the opportunity to ask some of them whether they thought that such tactics, because they slice up the electorate into tiny, self-​contained slivers, might be good for their candidates but bad for our democracy. “Interesting point, Professor, but our job is to get our guy elected, not save American democracy,” they both agreed. Indeed, these campaign managers may well have viewed refraining from perfectly legal and efective campaigning methods out of a worry that they might harm democracy as an unethical breech of responsibility to their principals. Four years later, the Clinton campaign’s communication director, Jennifer Palmieri, told Trump Campaign Manager Kellyanne Conway that “I would rather lose than win the way you guys did” at a diferent campaign debriefng event. She may have meant that she regarded the conduct of the Trump campaign as violating her individual moral commitments. But, she may also have meant that she regarded the conduct of her opponent’s campaign as wrong because it harmed American democracy. Political campaigns are a central component of representative democracy. Teir conduct in some measure constitutes the realization of the formal procedure of democracy: public consideration of alternative policy paths and the participation of citizens as political equals in choosing among them. Tat conduct also afects the robustness of democracy’s fve underwriting conditions discussed in the prior section. Political campaigns will ofen have reason to act in ways that beneft their candidates but harm democratic procedures and their underwriting conditions. In the metaphor of the tragedy of the commons, political campaigns face constant temptations to overfsh or unsustainably pollute. Ofen, these harmful actions will be perfectly legal. Even so, they should refrain from doing so and act to strengthen the procedures and underwriting conditions when they can do so without too much cost to themselves. For example, campaigns (both before an election and afer it) should reafrm the underwriting commitment to democratic processes over partisan gain. At the limit, this imperative requires campaigns to accept the determination of inevitably imperfect procedures and close calls. Al Gore’s gracious concession speech to George Bush in 2000, on the day afer the Supreme Court ruled 5–​4 in favor of Bush, illustrates this principle dramatically:33 I say to President-​elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country. . . Neither he

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nor I anticipated this long and difcult road. Certainly neither of us wanted it to happen. Yet it came, and now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy. . . . Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it . . . And tonight, for the sake of our unity as a people and the strength of our democracy, I ofer my concession. But privileging procedure over outcome requires attention to less visible and dramatic harms to democratic processes and conditions, as well. For example, campaigns may seek not just to mobilize their own supporters but also to demobilize those of their opponents. Eforts to depress turnout can take the form of targeted communications that, for example, “nudge” would-​be voters into staying home because they anticipate long lines at polling. Campaigns should refrain from activities that reduce political engagement because such action prioritizes their own success at the expense of participation and political equality in the democratic process. Te overweighted infuence of money in politics is one major reason that many Americans lack confdence that the democratic system instantiates the commitment to political equality or that it will be responsive to popular interests. Political campaigns should do what they can to mitigate these concerns subject to the constraint that they need not unilaterally disarm in the political contest for resources. Following the arms-​control analogy, campaigns might seek pacts with their adversaries to mutually regulate the resources they seek. Prior to the general election campaigns of 2008, both John McCain and Barack Obama had committed to accept the limits of public fnancing if the other party’s candidate also agreed to do so. But then Senator Obama became the frst presidential candidate of a major party to forgo the public fnancing system that was created in 1976.34 By some news accounts, the Obama campaign decided to abandon that commitment afer Obama’s powerful fundraising capacity became apparent.35 Campaigns might pursue competitive strategies that rely less on contributions from powerful groups and wealthy individuals who “max out” on campaign contribution limits. Bernie Sanders in 2016, for example, relied on a very high portion of small-​donor contributions. Donald Trump’s campaign in that year relied on internet outreach that was far less expensive than paid television advertising. Even without limiting the amounts or sources of their fnancing, political campaigns could help restore public confdence by voluntarily disclosing the sources of their support and funding beyond legal disclosure requirements.

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1.5  POLITICIANS AS PUBLIC OFFICIALS Afer the acrimony of campaigning, victorious politicians become ofcials invested with public power and even greater responsibility to strengthen the conditions for democracy to be successful and to refrain from damaging those conditions. But the temptation to damage democracy may be even greater because holding public ofce brings increased power to advance partisan interests at democracy’s expense. Politicians face strong temptations to deploy political power to advance their partisan interests at the expense of fair democratic processes. One version consists of eforts to entrench one’s faction by altering procedures to increase the likelihood of future political victory. Partisan legislative redistricting is one common form of such manipulation.36 But there are many other ways to amplify incumbency advantage, such as manipulating the franchise or using the power of law and regulation to protect one’s own sources of campaign fnancing at the expense of others. Other laws and policies can strengthen or weaken the social organizations of one’s own base or one’s opponents, for example, by making it easier or more difcult for labor unions to sustain themselves or by endowing fnancial and policy advantages to religious organizations.37 Political ofcials are ofen tempted to manipulate policymaking processes for momentary advantage by shifing powers to parts of government they happen to control at some particular moment. U.S. presidents are tempted to use executive orders to accomplish goals for which they cannot enlist Congress. Conversely, hostile legislatures have sought to remove power from the executive.38 Institutional consistency seems a plausible ethical principle to regulate such eforts: when in power, do not seek a distribution of authority that you would not accept when out of power. In their excellent treatment of the topic, Amy Gutmann and Dennis Tompson argue in Te Spirit of Compromise that democracy in America has sufered because the competitive strategic dynamics of permanent campaigning, which are antithetical to compromise, have intruded pervasively into processes of governing. Popular afective polarization—​an efect of political leadership to which those leaders are now also subject—​certainly exacerbates the resistance to compromise in the current American context. While public displays of principled tenacity and mutual mistrust—​Gutmann and Tompson’s account of the “uncompromising mindset”—​ may bolster popular partisan support, this ofcial behavior undermines public confdence by paralyzing government and so rendering it incapable of responding to citizens’ needs and solving social problems.39 Tough political ofcials may sufer decreases in support from the most ardent partisans, maintaining the conditions for successful democracy requires a greater embrace of the spirit of compromise.

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As leaders and public exemplars, political ofcials have a responsibility to reinforce the epistemic integrity of democracy. While disputes about evidence and the likely consequences of policy choices are inevitable, valuing epistemic integrity means at minimum avoiding making claims that they know to be false, or largely false, even when it will advance their political aims. Better still, public ofcials should seek to minimize the range of evidentiary disagreement with adversaries by seeking out and embracing the methods, experts, and claims that they can both agree upon, even when they disagree about their implications for public policy.

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1.6  OLD AND NEW MEDIA Tough old and new forms of media in the United States for the most part take the organizational form of private corporations, they create the infrastructure of the public sphere. Citizens learn about each other, their world, politicians, and government through the media. Te difculty is that the self-​interest of media organizations and journalists can lead them to strategies and actions that undermine conditions for successful democracy. For example, media studies have shown that since the 1970s—​afer public opinion polls became widely available—​coverage of campaigns and elections has focused predominantly on the competitive, so-​called horserace dimension of politics. In the 2016 general election, this pattern may have hit a new high with the horserace and controversy consuming some 60 percent of coverage while policy discussions occupied just 10 percent.40 Tis relative imbalance threatens the condition of epistemic integrity owing to its omissions. Te frame of the horserace focuses public attention on one important part of politics, but deemphasizes other important components, such as policy positions and accountability for prior performance. Te horserace frame of so much political coverage also makes compromise more difcult in the governing stage.41 Te 2016 general election also exposed a diferent problem with regard to professional media that relates to social cohesion. In a society that is vertically divided between elite and mass, and horizontally polarized between right and lef, media may serve these diferent quadrants unevenly. From this perspective, one awkward feature of the 2016 presidential election is that the winner—​Donald Trump—​received endorsements from only 27 newspapers while Hillary Clinton received some 500.42 It may be that media organizations and journalists are disproportionately clustered in the lef-​elite quadrant of Christopher Hayes’s doubly polarized America. Tere may be some credence to the notion held by some of Donald Trump’s supporters that much traditional media neither understand nor respect them.

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Despite these problems, one saving grace of professional journalism in America is its thick sense of professional responsibility to make democracy work by strengthening its epistemic integrity in ways that favor government responsiveness. One plank of that professional ethic is the drive to get the facts right and to present all sides of a story. A second plank is the professional mission to speak truth to power. As the code of ethics of the Society for Professional Journalism puts it: “Be vigilant and courageous about holding those with power accountable.”43 Because of this sense of the role of professional journalists in democracy, introspection regarding missteps in coverage of the 2016 elections began in earnest even before Election Day. Te novel and profound challenge of the media and democracy is that information and public discussion are increasingly shifing to new media, such as Facebook, Twitter, Google, and an array of news sites. Te self-​interest of these organizations is clear: like the newspapers of old, they are fnanced through advertising and so seek more users and more attention from each user. Tis self-​interest leads to decisions that harm the epistemic integrity and social cohesion of democracy. Unlike newspapers and network news of the twentieth century postwar era, however, these organizations lack a thick sense of ethical responsibility to democracy. To be fair, internet platforms like Google, Facebook, and Twitter do seem to have a thin sense of responsibility with regard to three components. Te frst is openness. Unlike traditional news outlets, the new media are in principle open to anyone who wishes to express a view or tell a story. Te second is neutrality. Within very wide boundaries, these platforms do not prefer any particular user or view over any other. Te third, speculatively, is a latent Millian faith that the best ideas will emerge from the media marketplace that they create. Te trouble with these three components is that the internet platforms are not just a marketplace in the Millian sense; they also operate in a conventional market in which their business models depend upon enabling those with resources to promote their stories or products. Furthermore, the platforms tailor themselves to maximize user engagement in order to provide a more robust market for their advertisers. Tree factors of this new media environment threaten the social-​coherence condition of democracy:  fragmentation, self-​selection, and algorithmic homophily. Audiences on the internet are necessarily more fragmented than those during the broadcast era. Even though a small number of internet platform companies dominate, each creates a structure of many-​to-​many communication that is profoundly more variegated than the one-​to-​many logic of the broadcast era of newspapers, television, and radio. Fragmentation itself might not pose a problem for democracy if it merely enabled people to pursue a wide range of cross-​cutting interests that created many overlapping groups. Tat vision could be the media mirror of a pluralist ideal.

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But that intersecting pluralism does not appear to be the new media reality. Instead, fragmentation seems to have facilitated political polarization. Media fragmentation enables individuals to self-​select into groups—​on social networks or distribution lists—​with similar interests and worldviews.44 Compounding this dynamic, algorithms and machine learning processes that channel information to individuals’ social media feeds and search engine results that are suited to our individual tastes and preferences. Te criteria according to which these mechanisms operate are not publicly known. Tey likely seek to maximize our engagement as measured by the time that we spend on particular pages; the frequency with which we click links; and how ofen we forward items to others, view associated advertising, and complete purchases. Te net efect of these algorithms, in turn, is likely to channel information that pleases us—​perhaps by confrming our views—​and is similar to those in our homophilic social networks rather than exposing us to other perspectives or correcting our errors. As the “fake news” scandals of 2016 have shown, the social information networks, the echo chambers they create, and the incentive for advertisers and platforms to reap “clicks” can conspire to powerfully undermine the epistemic integrity of political deliberation.45 Tough mainstream news media are far from error free, it is quite plausible that the forces of professional journalists ethically driven to produce accurate reporting, combined with large, general audiences with diverse views, have created a more epistemically favorable environment than the new media environment of self-​confrming echo chambers and information purveyors with a much wider range of motives. Perhaps the biggest challenge to sustaining epistemic integrity in the new media environment is to convince those who own, design, and operate internet platforms that they have substantial obligations to our democracy. Te notion that the choices they make have profound impacts on the health of our democracy on dimensions like social cohesion and epistemic integrity is likely to be unwelcome because of the responsibilities that would entail. Te idea that their current choices are harming democracy would be even less welcome. Acting on those responsibilities might well require costly changes to business practices, as do shifs to improve environmental quality or labor practices. How might the new media moguls come to embrace a thick and demanding sense of their responsibility to democracy that constrains their private, proft-​oriented prerogatives? Large newspaper and radio organizations underwent a similar transformation in the mid-​twentieth century. Te report of the Hutchins Commission was a milestone in that transformation. In 1942, Henry Luce of Time, Inc., convened the commission which was chaired by University of Chicago President Robert Hutchins and joined by, among others, Charles Merriam, Reinhold Niebuhr, Harold Lasswell,

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and Arthur Schlesinger. While the original notion was to examine freedom of the press, the commission’s report emphasized the responsibility of the press to democracy and society. Ten, as now, the technologies and organization of communication were changing dramatically, and those changes brought great danger:46

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Te problem is of peculiar importance to this generation. Te relation of the modern press to modern society is a new and unfamiliar relation. Te modern press is a new phenomenon. It can facilitate thought or thwart progress. It can debase and vulgarize mankind. It can endanger peace. It can do it accidentally, in a ft of absence of mind. Its scope and power are increasing. Tese great new agencies of mass communication can spread lies faster and farther than our forefathers dreamed when they enshrined freedom of the press in the First Amendment to the Constitution. With the means of self-​destruction now at their disposal, men must live, if they are to live at all, by self-​restraint and mutual understanding. Tey get their picture of one another through the press. If the press is infammatory, sensational and irresponsible, it and its freedom will go down in the universal catastrophe. On the other hand, it can help create a new world community by giving men everywhere knowledge of the world and one another, by prompting comprehension and appreciation of the goals of a free society. Tus the commission concluded in no uncertain terms that freedom of press understood as negative liberty alone would lead to democratic disaster. Instead, they recommended that the press accept great responsibilities to provide the information and space for discussion required by successful modern democracy: Te press is a private business but afected by a public interest; Te press has an obligation to elevate rather than degrade public interests; Te press itself should assume responsibility of service the public needs; We suggest the press look upon itself as performing a public service of a professional kind; We recommend that mass communication accept the responsibility of a common carrier of information and discussion; Te press should fnance attempts to provide service of more diversity and quality for tastes above the level of its mass appeal. Without some functional equivalent to the democratic professional ethics of twentieth-​century journalism updated for the new media context, the dynamics of information and news on internet platforms will continue to undermine the

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underwriting conditions for successful democracy. Developing that code will be a complicated undertaking that should itself be an exercise in democratic deliberation and public reasoning. One task of such an ethic is to increase the accuracy of information that citizens receive. Another is to overcome informational and perspectival balkanization so that citizens can encounter those who occupy points in public space that are distant from their own.

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1.7  CITIZENS Te self-​interest of citizens themselves can erode the conditions for successful democratic governance. Teorists of democracy—​from Aristotle, Rousseau, and Mill, right up to Amy Gutmann and Bill Galston—​have noted the importance of civic education and democratic habits. Perhaps part of the desiccation of our democratic culture—​the emphasis on private over public or structure over agency—​is that those types of discussions about civic virtue and the responsibilities of citizens are less common now. Bill Galston and E. J. Dione write that “citizenship in America is radically unbalanced: it is strong on rights but weak on responsibilities . . . citizens are asked to pay their taxes and obey the law—​and show up for jury duty when summoned. Tat’s about it.”47 It is time to renew our public consideration of what citizens ought to do to make democracy work and how to inculcate those responsibilities. Rather than resulting from a deductive exercise that begins with a larger theory of democracy, my conclusions about what citizens owe to democracy grow out of the need to reestablish the particular sociopolitical conditions for democratic success discussed in the frst part of this chapter. Te view of civic responsibility that emerges from this largely consequential reasoning is more demanding than those who focus on informed voting, but much less demanding than civic republican, deliberative democratic, or participatory views of active citizenship. Te frst of these responsibilities is to actually participate in the democratic process. Only 55 percent of eligible voters bothered to turn out to the polls in the 2016 presidential election. Turnout in state and local elections and mid-​term elections is signifcantly lower. Among the relatively developed OECD (Organization for Economic Cooperation and Development) countries, the United States ranks very near the bottom of the list—​at 31 out of 35 countries—​in voter turnout.48 Many institutional reforms—​from automatic registration, to mail-​in voting, to mandatory voting—​would increase these participation rates.49 Apart from these institutional fxes, a critical normative starting point is that citizens regard it as part of their civic responsibility to participate in elections and other democratic processes.

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Second, citizens owe it to themselves and to their democracy to hold serious and consistent views about politics and policy. Epistemic integrity and government responsiveness require that. A version of this norm is the willingness to do one’s part for public policies, especially those one favors. Illustrating this inconsistency, a 2004 survey showed that the majority of young people supported the U.S.  invasion of Iraq, but only a small minority were themselves willing to fght in that war.50 On the cognitive level of consistency, Suzanne Mettler shows that Americans fail to recognize the government services they use and the benefts they receive: 51

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A 2008 poll of 1,400 Americans by the Cornell Survey Research Institute found that when people were asked whether they had “ever used a government social program,” 57 percent said they had not. Respondents were then asked whether they had availed themselves of any of 21 diferent federal policies, including Social Security, unemployment insurance, the home-​mortgage-​interest deduction and student loans. It turned out that 94 percent of those who had denied using programs had benefted from at least one; the average respondent had used four. Much of the blame for these mistakes lies in the “submerged” way in which many policies are designed to conceal the role of government and in the broader decline in public regard for government. But citizens have a democratic responsibility to exercise the cognitive efort needed to understand their own experiences with policy and the benefts they derive from it. Finally, social cohesion and the popular basis for political compromise require citizens to reach across the horizontal and vertical chasms that now separate America along mass/​elite and lef/​right lines. Deliberative democrats have emphasized the importance of understanding other worldviews through civic education and public processes.52 Pursued earnestly, however, reaching out to people in the other Americas to achieve mutual understanding, respect, and a modicum of solidarity is costly on psychological, social, and perhaps political and economic dimensions. Psychologically, eforts to understand other perspectives require resisting powerful tendencies toward confrmation bias and motivated reasoning. One consequence of afective polarization is that seriously entertaining the perspectives of the other side can come at high cost to social harmony.53 Tink here of the lonely experience of the Clinton supporter in many Oklahoma communities and the Trump supporter in Cambridge, Massachusetts, or Palo Alto, California. While the challenge of bridging ideological divisions has been a longstanding problem in liberal political theory, I  have focused less bridging the gaps between economic, political and cultural elites and everyone else. Perhaps that is because

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many ideal democratic theories embrace an egalitarianism in which those categories are unjustifed and should not exist. But they do exist and will persist in modern democracies for the foreseeable future. Recent political events in the United States and Europe suggest that this socioeconomic division between elite and mass may have become as signifcant as the ideological division between lef and right. Bridging that gap requires a commitment to understanding the lived experiences of very diferent others. One path is through literature; I’m thinking here of work by Ta-​Nehisi Coates and Arlie Hochschild, as examples.54 A better path is through direct interaction. Iris Marion Young wrote about the democratic virtues of city life, in which “City dwellers frequently venture beyond such familiar enclaves, however, to the more open public of politics, commerce and festival, where strangers meet and interact.”55 But that was a quarter-​century ago. Now, geographers and sociologists highlight the problems of spatial polarization along both ideology and class lines. In principle, however, digital communication technologies can facilitate citizens’ serendipitous encounters with diferent others, both communicatively and virtually, if not through physical proximity. In reality, for the reasons discussed earlier, those technologies have exacerbated polarization rather than have bridged it. Diferent technological designs would help reverse this commitment, but bridging these divides also requires a normative commitment by citizens to open themselves up to such diferences and even to seek them out. If we stipulate that elites are here to stay, part of the efort to construct this bridge should investigate what elites owe to nonelites for the sake of social cohesion, democracy, and justice. Rob Reich and Emma Saunders-​Hastings, for example, are examining the norms that ought to guide and restrain philanthropists such as Bill Gates and Mark Zuckerberg with respect to their benefciaries.56 Work in corporate social responsibility explores what the owners and managers of economic enterprises owe to workers and communities. And, following events such as the mass rejection of European Union membership in Britain and several other countries, and Donald Trump’s presidential victory, political elites and political entrepreneurs are revisiting the ways to bridge the chasm that separates them from their constituencies.

1.8 CONCLUSION Many modern democracies now face crises of legitimation, performance, and nonresponsiveness. We all bear some responsibility for those crises because we—​in our various professional, public, and private roles—​have in the course of pursuing our various self-​ interests degraded the conditions that make democracy successful. Yet, almost everyone in the wealthy North Atlantic societies—​and many

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beyond—​shares a general commitment to democracy as their preferred system of governance.57 But taking that commitment seriously requires projecting it into more specifc responsibilities for various actors in contemporary democratic systems. I have tried to begin that exercise of normative specifcation here. One obvious objection to this line of reasoning is that civic and professional ethics—​even when clarifed—​will be too weak to constrain the forces of self-​ interest that have led us to damage democracy in the frst place. For that, we need more potent institutional reforms like campaign fnance, popular or independent redistricting, and media regulation. Tis ethical project does not preclude such institutional reforms. Indeed, successful democracy requires good institutions and robust civic responsibility. Tey go hand in hand. A widespread shared understanding of the democratic ethical responsibilities of politicians, media actors, and citizens may pave the way for institutional reform. Absent such commitment, democratic institutional reform may be a quixotic project of civic activists and public-​spirited lawyers who are doomed to drown in the tides of decadent self-​interests, indiferent to the health of democracy. Practically, how can we accelerate the public conversation about what democracy requires? Tat acceleration will likely require opportunity and capacity. Crisis creates opportunity—​the sense that democracy is in crisis is now acute. In the United States, it is likely the case that the majority of voters voted against the candidate they disliked rather than for the candidate they supported in 2016. How can it be that our democratic institutions cannot produce two more popular candidates in a country of 300 million? Fortunately, the capacity for ethical and moral refection is widely distributed in society. Tat expertise is not the sole province of professional philosophers. We can begin to unleash that capacity when we stop blaming one another, agree that we get the democracy that we deserve, decide to become worthy of a better democracy, and then work together to rebuild it. Notes * I’m indebted to Joshua Cohen, Annabelle Lever, Pepper Culpepper, Peter Hall, Stephen Kosack, Debra Satz, Dennis Tompson, Melissa Williams, and the participants of the “Ideas that Matter: Conference in Honor of the Work and Teaching of Joshua Cohen” at Stanford University in January 2017 for comments on prior versions of this chapter. I have responded as best I can, but much work remains. 1. Joshua Cohen, “Deliberation and Democratic Legitimacy,” in his Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press, 1997). 2. Elinor Ostrom, “Te Need for Civic Education: A Collective Action Perspective,” Workshop in Political Teory and Policy Analysis, Conference Paper, 1998, https://​ostromworkshop.indiana.edu/​library/​node/​75603.

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3. A. Przeworski, “Minimalist Conception of Democracy: A Defense,” in Democracy’s Value, ed. I. Shapiro and C. Hacker-​Cordon (Cambridge: Cambridge University Press, 1999), 23–​55; Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper and Row, 1942). 4. Cohen, “Deliberation and Democratic Legitimacy,” 74. 5.  Pew Research Center, “Political Polarization in the American Public,” June 12, 2014, http://​w ww.pewresearch.org/​w p- ​c ontent/​uploads/​s ites/​4 /​2014-​Political-​Polarization-​ Release.pdf. 6. Pew Research Center, “Te Partisan Divide on Political Values Grows Even Wider,” October 2017, http://​www.people-​press.org/​2017/​10/​05/​the-​partisan-​divide-​on-​political-​values-​grows-​ even-​wider/​. 7.  “Americans Views on Money and Politics,” New  York Times, June 15, 2015, http://​www. nytimes.com/​interactive/​2015/​06/​02/​us/​politics/​money-​in-​politics-​poll.html. 8. Christopher Hayes, Twilight of the Elites (New York: Crown, 2012). 9.  M. P. Fiorina and S. J. Abrams, “Political Polarization in the American Public,” Annual Review of Political Science 11 (2008): 563–​88. 10. M. J. Hetherington and T. J. Rudolph, Why Washington Won’t Work: Polarization, Political Trust, and the Governing Crisis, Chicago Studies in American Politics (Chicago: University of Chicago Press, 2015). See also Shanto Iyengar, Gaurav Sood, and Yphtach Lelkes, “Afect, Not Ideology:  A Social Identity Perspective on Polarization,” Public Opinion Quarterly 76, no. 3 (2012): 405–​31. 11. Hetherington and Rudolph, Why Washington Won’t Work, ch. 2. 12. Pew Center for Research, “Political Polarization in the American Public,” 48. 13. In Te Concept of the Political, Carl Schmitt writes that “in the realm of morality the fnal distinctions are between good and evil, in aesthetics beautiful and ugly, in economics proftable and unproftable.  .  .  . Te specifc political distinction to which political actions and motives can be reduced is that between friend and enemy.” Carl Schmitt, Te Concept of the Political (Chicago: University of Chicago Press, 2007), XXX. 14. See Hayes, Twilight of the Elites; Chrystia Freeland, Plutocrats: Te Rise of the New Global Super-​Rich and the Fall of Everyone Else (New York: Penguin, 2012; Crystia Freeland, “Te Rise of the New Global Elite,” Te Atlantic 307, no. 1 (2011): 44–​55. 15. M. Gilens and B. I. Page, “Testing Teories of American Politics: Elites, Interest Groups, and Average Citizens,” Perspectives in Politics 12 (2014): 564–​81. 16. T. Piketty, Capital in the Twenty-​First Century (Cambridge, MA: Belknap Press of Harvard University Press, 2014). 17. Benjamin I. Page and Martin Gilens, Democracy in America?: What Has Gone Wrong and What We Can Do About It (Chicago: University of Chicago Press, 2017. 18. Amy Gutmann and Dennis Tompson, Te Spirit of Compromise (Princeton, NJ: Princeton University Press, 2012). 19. Jacob S. Hacker and Paul Pierson, Winner-​Take-​all Politics: How Washington Made the Rich Richer—​and Turned Its Back on the Middle Class (New York: Simon & Schuster, 2011). 20. Phillip Bump, “Te 114th Congress Had a Pretty Productive Year (By Recent Standards, At Least),” Washington Post, December 24, 2015. 21. See http://​www.gallup.com/​poll/​1600/​congress-​public.aspx. 22. See Pew Research Center, “Beyond Distrust: How Americans View Teir Government,” 2015, http://​www.gallup.com/​poll/​163031/​gridlock-​top-​reason-​americans-​critical-​congress.aspx.

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23.  See Martin Gilens, Afuence and Infuence:  Economic Inequality and Political Power in America (Princeton, NJ: Princeton University Press, 2014); Gilens and Page, “Testing Teories of American Politics,” 564–​81; and Martin Gilens and Benjamin Page, “Critics Argued With Our Analysis of U.S. Political Inequality:  Here Are 5 Ways Tey’re Wrong,” Washington Post, May 23, 2016. 24. Pew Research Center, “Beyond Distrust,” 151, 166–​67. 25. Schumpeter, Capitalism, Socialism, and Democracy, 270. 26. Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989), 112. 27.  Susan D.  Moeller, “Media Coverage of Weapons of Mass Destruction,” Center for International and Security Studies at Maryland, 2004, http://​cissmdev.devcloud.acquia-​sites. com/​sites/​default/​fles/​papers/​wmdstudy_​full.pdf. 28. Stephen Mihm, “Dr. Doom,” New York Times, August 15, 2008; see also David Colander et al., “Te Financial Crisis and the Systemic Failure of Academic Economics,” Discussion paper 09-​03, 2009, Department of Economics, University of Copenhagen. 29. Hetherington and Rudolph, Why Washington Won’t Work. 30. Cass R. Sunstein, Republic.com 2.0 (Princeton, NJ: Princeton University Press, 2009). 31. Eli Pariser, Te Filter Bubble: How the New Personalized Web Is Changing What We Read and How We Tink (New York: Penguin, 2011). 32. John Rawls, A Teory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, [1971] 1999), 99. 33.  Al Gore, “Te 43rd President; In His Remarks, Gore Says He Will Help Bush ‘Bring American Together,’” New York Times, December 14, 2000. 34. See http://​www.nytimes.com/​2008/​06/​20/​us/​politics/​20obamacnd.html. 35. Bill Adair and Angie Drobnic Holan, “He Said He’d Pursue it, But Opted Out,” PolitiFact, August 4, 2008, http://​www.politifact.com/​truth-​o -​meter/​statements/​2008/​aug/​04/​barack-​ obama/​he-​said-​hed-​pursue-​it-​but-​opted-​out/​. 36. See Samuel Issacharof, “Gerrymandering and Political Cartels,” Harvard Law Review 116, no. 2 (2002): 593–​648. 37. See Daryl J. Levinson and Benjamin I. Sachs, “Political Entrenchment and Public Law,” Yale Law Journal 125, no. 2 (2015): 326–​559. 38. Trip Gabriel, “North Carolina G.O.P. Moves to Curb Power of New Democratic Governor,” New York Times, December 14, 2016, A14. 39. Gutmann and Tompson, Spirit of Compromise, ch. 2. 40. Tomas Patterson, “News Coverage of the 2016 General Election: How the Press Failed the Voters,” December 2016, Shorenstein Center for Media and Politics, Harvard Kennedy School, https://​shorensteincenter.org/​news-​coverage-​2016-​general-​election. 41. Gutmann and Tompson, Spirit of Compromise, ch. 5. 42.  Te count according to Wikipedia; see https://​en.wikipedia.org/​wiki/​Newspaper_​ endorsements_​in_​the_​United_​States_​presidential_​election,_​2016. 43. See http://​www.spj.org/​ethicscode.asp. 44. Sunstein, Republic.com 2.0. 45.  BuzzFeed reported that the top fve political fake news stories generated some 5  million shares on Facebook. Te top story was “Obama Signs Executive Order Banning Pledge of Allegiance,” garnering over 2  million shares; https://​www.buzzfeed.com/​craigsilverman/​ top-​fake-​news-​of-​2016.

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46.  “Freedom for What? Only a Responsible Press Can Stay Free,” Nieman Reports, 1947, http://​1e9svy22oh333mryr83l4s02.wpengine.netdna-​cdn.com/​wp-​content/​uploads/​2014/​04/​ April1947.pdf. 47. William Galston and E. J. Dionne, “Te Case for Universal Voting: Why Making Voting a Duty Would Enhance Our Elections and Improve Our Government,” Brookings Institution, https://​www.brookings.edu/​wp-​content/​uploads/​2016/​06/​universal_​voting.pdf. 48.  See http://​www.pewresearch.org/​fact-​tank/​2017/​05/​15/​u-​s-​voter-​turnout-​trails-​most-​ developed-​countries/​. 49. Galston and Dionne, “Case for Universal Voting.” 50. W. A. Galston, “Tinking about the Draf,” Public Interest 154 (2004): 63. 51.  Suzanne Mettler, “Our Hidden Government Benefts,” New  York Times, September 20, 2011, A31. See also Suzanne Mettler, Te Submerged State:  How Invisible Government Policies Undermine American Democracy, Chicago Studies in American Politics (Chicago: University of Chicago Press, 2011). 52. Amy Gutmann, Democratic Education, rev. ed. (Princeton, NJ: Princeton University Press, 1999); Gutmann and Tompson, Spirit of Compromise, ch. 5. 53.  Diana C. Mutz, Hearing the Other Side:  Deliberative versus Participatory Democracy (New York: Cambridge University Press, 2006). 54.  T.-​N. Coates, Between the World and Me (New  York:  Spiegel & Grau, 2015); A. R. Hochschild, Strangers in Teir Own Land:  Anger and Mourning on the American Right (New York: New Press, 2018). 55. I. M. Young, Justice and the Politics of Diference (Princeton, NJ: Princeton University Press, 1990), 237. 56.  Rob Reich, Just Giving:  Why Philanthropy Is Failing Democracy and How It Can Do Better (Princeton, NJ:  Princeton University Press, 2018); E.  Saunders-​Hastings, “Plutocratic Philanthropy,” Journal of Politics 80, no. 1 (2018): 149–​61. 57. Tough there is some evidence that this commitment is fagging. See Roberto Stefan, Foa and Yascha Mounk, “Te Democratic Disconnect,” Journal of Democracy 27, no. 3 (2016): 5–​17.

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[L]‌iberty may be endangered by the abuses of liberty as well as by the abuses of power. —​F ederalist  Papers

2 Collective Reason or Individual Liberty Deliberative Democracy and the Protection of Liberal Rights

Assaf Sharon

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2.1  DEMOCRACY AND LIBERTY Is government by the people also government for the people? Does democracy secure individual rights and liberties? Te conventional liberal reply is: not necessarily. Liberal luminaries were commonly concerned about the danger of tyranny by democratic majorities and the threat of democratic mob rule. Tey tended to regard a regime of individual and civil rights, embodied in a constitutional order, as a necessary means designed to prevent such democratic degeneracies. According to the standard view, democracy and liberalism are distinct ideas, giving rise to competing, potentially conficting, normative demands. Democracy is the institutional realization of popular sovereignty, in which people are ruled by a government of their own. Liberal rights and the institutions defending them ensure that this rule is not oppressive or invasive in objectionable ways, protecting individuals’ independence from their fellow citizens and from the political authority they have jointly created. On this picture, the liberties of the moderns, as Constant called them—​freedom of expression, freedom of religion, private property, et cetera—​are seen as limitations on the exercise of collective democratic authority. Judicial review and the separation of powers, for example, are institutional schemes designed to curb the power of democratic assemblies from encroaching on individual liberties. 36

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One concern that naturally arises with respect to this familiar picture is that both ideas are presumably rooted in the same normative foundation—​namely the value of liberty, of equality, and of human dignity. If both democracy and liberal rights are ultimately grounded in the same values, then, presumably,1 they ought to receive a uniform explanation. Yet, on the standard view, “Te liberties of the moderns appear . . . to be founded on values entirely independent from the values of democracy.”2 A diferent picture of the relation between democracy and liberal rights has one of them entailed by the other. On one line of thought, democracy emerges as an upshot of liberalism: curbing political power and protecting individual rights requires popular participation and control over government. On another, liberal rights follow from the democratic ideal. My aim in this chapter is to examine the deliberative democratic attempt to provide a unifed theory of the latter kind. I frst present an account of deliberative democracy as a novel conception of self-​ government by means of the possible role of reason in politics. Tus understood, I  argue, deliberative democracy can avert some of the criticisms leveled against it. I  then proceed to examine what this conception entails. In contrast to realist critiques arguing that deliberative democracy is an unrealizable utopia, I  wish to inquire whether the implementation of deliberative democracy is compatible with broad protection of individual rights, its liberal objective. In other words, can a government of the people and by the people also be a government for the people? I argue that the socializing efects to which the theory of deliberative democracy is explicitly committed present a formidable challenge to its liberal aspiration; “given who we are,”3 self-​government by collective deliberation might be incompatible with a commitment to robust protection of individual liberties. 2.2  DEMOCRACY RIGHTLY UNDERSTOOD It is easy to overlook the connection between liberal rights and democracy when the latter is conceived mainly in procedural terms, as rule by majority. On such a conception, democracy requires that the interests of every individual be given equal consideration in the decision procedure.4 Fair procedure and equal consideration notoriously do not entail robust protection of individual liberties. Te view of democratic decision-​making as consisting in the aggregation of citizens’ opinions (under fair background conditions, etc.) can incorporate the value of political liberties and might be extended to include individual liberties—​such as religious and expressive freedoms—​to the extent that and insofar as they are necessary for satisfying the requirement of equal consideration. On this view, the protection of “liberties of the moderns” does not extend beyond what this procedural rationale entails.5

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Presumably, however, freedom of thought, expression, religion, conscience, and other basic liberties should be protected even when their protection is not necessary for equal consideration.6 Tey should be protected not only because public decisions will otherwise not properly refect the interests of all citizens but also, and primarily, because of the value of such liberties for individuals. Furthermore, equal consideration allows for tyranny over minorities by discriminatory, prejudiced, or self-​interested majorities. So far as it goes, “if [a]‌legislation is rejected despite its foundations in the interests of the majority, then the majority might complain that the resulting process undemocratically discounted its interests.”7 To defend basic liberties against majoritarian assault, therefore, requires a normative foundation more robust than equal consideration. Behind these worries there seems to lie a deeper concern:8 it’s not just that the aggregative conception does not deliver the liberal goods but, furthermore, the principle of equal consideration does not capture the rationale underlying democracy—​ namely the ideal of self-​government. Even if one’s interests have been given equal consideration so long as one did not partake in the process, let  alone if one was actively excluded from participating in it, the decision cannot properly be regarded as one’s own. Likewise, it is difcult for members of the minority (especially a persistent minority) to see decisions of the majority, which they oppose or which impose severe restrictions on their freedoms or infringe on their rights, as in any real sense their own. As Iris Marion Young puts it, “Te normative legitimacy of a democratic decision depends on the degree to which those afected by it have been included in the decision-​making processes and have had the opportunity to infuence the outcomes.”9 Te question is not (or at least not only) how much weight one’s interests have been given by decision-​makers. Self-​government means that one is not subject to decisions to which one was not a party. Collective self-​government therefore requires collective decision-​making, not merely equal consideration. Te deliberative approach, therefore, replaces the aggregative conception with the idea of “reasoning together as equals on matters of common concern” (PPD, 7). Once this idea is feshed out, says the deliberative democrat, the liberal desiderata will also have been attained. Democracy rightly understood entails liberal rights.10

2.3  THE BODY POLITIC How can decisions be collective in large heterogeneous societies, where individuals disagree not only about the best means for achieving shared ends but also about the ends themselves and the values that ought to inform the choice of ends? Deliberative democracy aims to ofer an innovative answer to this fundamental question. To

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appreciate its novelty, it ought to be set against the venerable tradition that it succeeds.11 Te idea of collective self-​government evokes the question of who the agent is—​what is the “self ”?—​who is supposed to govern. Te traditional view is that self-​rule requires unity of will. In order for a plurality of diverse individuals to be self-​governing, there must be some way to substitute a single collective will for the inconsistent plurality of individual wills. Te canonical social-​contract theorists held diferent views about how the multiplicity of individual wills can be unifed. Rousseau famously employed the elusive notion of the “general will,” whereby Each of us puts his person and his full power in common under the supreme direction of the general will; and in this a body we receive each member as an indivisible part of the whole. . . . Te public person thus formed by the union of all the others formerly assumed the name City and now assumes that of Republic or of body politic.12

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Te body politic is the collective entity formed by the unifcation of individual wills under the general will. In obeying it, each “obey[s]‌only himself and remain[s] as free as before.”13 Hobbes analyzes the unifcation of the will and the formation of the body politic in terms of authorization of and representation by a single agent. Te only way to erect such a common power as may be able to defend them from the invasion of foreigners and the injuries of one another . . . is to confer all their power and strength upon one man, or upon an assembly of men, that may reduce all their wills, by plurality of voices, unto one will, which is then as much as to say, to appoint one man or assembly of men to bear their person, and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act.14 Famously depicted in the book’s frontispiece, “the person of the state,” as Hobbes called it, is created when each citizen confers all his rights and powers on an agent, who is thereby authorized to serve as his representative. When one agent is authorized to represent everyone, the plurality of wills “is reduced onto one will,” Hobbes says. Tis is how individuals become subject to an authority that acts “in their name”15 and remain the owners of its actions.16 Setting aside many important details, these theories share the idea of the body politic as a collective agent capable of self-​rule formed via the unifcation of individual wills into or under a single collective will.17 Deliberative democracy replaces

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this conception of self-​government. It does so by employing a distinct conception of the role of reason in politics.

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2.4  REASON IN POLITICS According to one well-​known view, politics is the realm of interests, passions, and power, not of reason. When they are employed in politics, reasoned arguments are but a veil masking brute power and naked interests. Tus the very idea of “subject[ing] the exercise of power to reason’s discipline” (PPD, 330) is fundamentally misguided.18 Joshua Cohen is a ferce critic of cynicism masquerading as “realism.”19 “Normative thought,” he stresses, “is part of politics” (PPD, 4). Both citizens and politicians candidly argue about principles, ideals, and values and their proper implementation in real politics. “We suppose that our convictions withstand scrutiny and we think they are worthy of our allegiance—​and suitable for political argument—​because they do” (PPD, 3).20 Blanket skepticism about the very introduction of reason into the political realm is theoretically dubious, and the cynicism it breeds can be politically dangerous. So let me, with Cohen, set aside such skepticism. Tere can be diferent reasons for wanting to subject power to reason. One motivation is instrumental: guided by reason, power will be employed most efectively. Another motivation might be labeled “rationalist”: only when it adheres to reason and to (normative and nonnormative) truth, is the exercise of power legitimate. A third motivation can be called “democratic.” According to this conception, the exercise of power is legitimate only when it is justifable on grounds that are rationally acceptable to those over whom it is exercised. Unlike the instrumental approach, the role of reason according to the rationalist and the democratic conceptions is not contingent and its justifcation is not consequentialist. Rather, the role of reason is justifed in terms of legitimacy.21 On the democratic approach, legitimacy is tied not to truth, as it is in the rationalist approach, but to acceptability. Te scope of reason that is pertinent to the democratic approach is therefore more qualifed: it’s not reasons as such that matter, but a more limited notion of reasons that are (in some sense, yet to be specifed) acceptable to all: public reasons. 2.5 PUBLIC REASONING Te democratic theory of public reason is thus committed to the idea that the exercise of public authority is only legitimate when it can be justifed on terms that are

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acceptable to all reasonable individuals over whom it reigns. Some theorists justify this idea in terms of justice or fairness.22 Rawls suggests the following account of public agreement given reasonable pluralism:

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Justice as fairness tries to do this by using a fundamental organizing idea within which all ideas and principles can be systematically connected and related. Tis organizing idea is that of society as a fair system of social cooperation between free and equal persons viewed as fully cooperating members of a society over a complete life . . . this conception provides a publicly recognized point of view from which all citizens can examine before one another whether their political and social institutions are just. It enables them to do this by citing what are publicly recognized among them as valid and sufcient reasons singled out by that conception itself. . . the aim of justice as fairness, then, is practical: it presents itself as a conception of justice that may be shared by citizens as a basis of a reasoned, informed, and willing political agreement. It expresses their shared and public political reason.23 Jonathan Quong concludes from this that: “Adhering to the requirements of public reason is thus how we can each endeavor to treat each other justly.”24 Surely the point is not endeavoring to treat each other justly but, rather, actually doing so. But on this point, the passage from Rawls is quite opaque. Being able to examine whether institutions are just is not the same as their being just. Reaching “reasoned, informed, and willing political agreement” is another matter altogether, suggesting that the institutions are just in virtue of enjoying proper public consent. But the issue is not consent. As Quong himself writes elsewhere:  “Te idea of public reason appears to inhabit a middle ground between two more familiar standards of evaluation in moral and political philosophy. On the one hand, there is consent. . . . On the other hand, there is truth. . . . Public reason does not aim either at consent or truth.”25 Defenders of public reason cannot simply assert that justice requires that institutions be justifable to everyone as that would be begging the question. Quong’s explanation is that to “deny that the fundamental principles of justice ought to be reasonably acceptable to other free and equal citizens” is “to deny the equal status of other citizens.” Tis is because it is tantamount to prioritizing one’s own view over those of others: To insist that the principles of justice should be grounded in one’s own comprehensive doctrine despite the fact that this doctrine is reasonably rejected by one’s fellow citizens assumes that one’s own claims to have access to religious, moral, or philosophical truth carry greater weight than the claims of others; it

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denies that the relationship between citizens in a democratic society ought to be characterized by an ideal of equality.26 Tough seemingly plausible, this argument is fawed. Te opponent of public reason need not insist that the principles of justice should be grounded in his comprehensive doctrine but, rather, that they should be grounded in truth. It isn’t one’s access to religious, moral, or philosophical truth that carries the weight but, instead, the fact that it is the truth. As Joseph Raz put it: “Tat we have certain views is not, for us, a reason for anything. Our reason is that, as we see it, things are so and so.”27 Justifying one’s claims by what one takes to be the right moral doctrine, one is not prioritizing oneself or one’s view over those of others. Instead, it is prioritizing the truth, as one understands it, over untruth, as one understands it.28 Te equal status of citizens is therefore not denied or violated merely by relying on a comprehensive doctrine.29 Tis is the rationalist challenge: if reason is to matter in politics, if it is a source of legitimacy, then it ought to be right reason that counts.30 Justifying political arrangements and institutions by true reasons does not violate equality just because some do not recognize their truth.31 So, why should the state not act on the best reasons available? To be sure, there can be many advantages to refraining from enforcing decisions based on justifcations that not everyone can accept. Such restraint may motivate obedience, fortify public spiritedness, and encourage participation. Instrumental advantages of this kind may count against acting on controversial decisions, but they might also be outweighed by other considerations. Here is Raz again: “We see the good in steering clear of controversy. . . . But we do not believe that that good outweighs the loss that excluding central concerns from politics involves.”32 Another difculty with the equal-​treatment justifcation for public reason pertains to the idealization it involves. As David Enoch helpfully noted, public reason standardly involves two kinds of idealizations: frst, restricting the scope of the relevant constituency (those to whom public justifcation is owed as a necessary condition for legitimacy)—​so that what’s needed for legitimacy is not justifability to all, but, say, to all the reasonable, or all the qualifed; and second, going hypothetical, so that those engaged by the justifcation-​to requirement are not people as they actually are, but some hypothetical, idealized version thereof.33 Te problem with the frst kind of idealization is obvious: If the rationale of public reason is to treat everyone equally, why are the unreasonable excluded? Don’t they also deserve to be treated with equal concern and respect?34 A possible reply might

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be that excluding unreasonable views is not tantamount to excluding those who hold them and therefore does not mistreat them. But if what we care about is respect for individuals, and if this respect is expressed by taking account of their views, then this line of defense requires further argument—​Why is the exclusion of unreasonable views not a mistreatment of those who happen to hold such views? Te second kind of idealization raises familiar concerns about the normative force of hypothetical agreement.35 A third concern is that public reason might be self-​defeating: the principle according to which decisions must be justifable to those subject to them is itself a political principle and the object of reasonable dispute.36 Teorists of public reason have developed diferent replies to this challenge. Some argue that the principle of public justifcation does not apply to itself. Tis is hard to justify, since it is apparently a principle regulating the exercise of collective power.37 Others argue that public justifcation does apply to itself, but that it meets its own requirements—​ namely it is justifable to every reasonable person in the society.38 Te challenge here is to ground the principle of public justifcation in a value or an ideal that is suitably publicly shared. Te value of autonomy, for example, can ground the demand for public justifcation, but the worry is that it is not adequately publicly shared. Even if some general idea of autonomy is shared, the particular interpretation of autonomy as entailing a demand for public justifcation is apparently not (as verifed by the existence of the critics making these very points). Tus Quong argues that the autonomy account of public reason fails because it “presupposes a particular comprehensive doctrine”—​namely a doctrine about the value of individual liberty as rooted in the exercise of reason.39 Te democratic account is well equipped to handle all three challenges. Its aim is to provide an account of collective self-​government for free and equal persons.40 It does this through the idea of subjecting the employment of collective authority to collective reasoning—​that is, reasoning on the basis of shared reasons. In other words, the restriction to reasons that are publicly acceptable is rooted in the idea of collective decision-​making: unless the reasons advanced are (in some sense) acceptable to everyone, the process cannot be regarded as one of collective decision-​ making. Given the fact of reasonable pluralism, the range of shared reasons must be restricted to those that are acceptable to all who are committed to the idea of collective self-​rule by free and equal persons. On this picture, it is clear why reason as such does not get to rule the day: true reasons that some in the society can reasonably reject are not shared reasons and therefore reasoning from them does not constitute public reasoning. Te deliberative “ideal of democracy” is self-​government under the guidance of reason, or more precisely, “through the use of our shared reason.”41 Te reasons we share are

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not necessarily the right reasons, and certainly not all the right reasons. For our decisions to be collective decisions, the reasons on which they are based must be reasons pertaining to our common afairs and they must be reasons we all accept (or can reasonably be expected to accept)—​that is, public reasons.42 It is also clear why the unreasonable are excluded. If the idea of public reason is to realize collective self-​rule between free and equal citizens, then naturally it applies only to those who are capable of participating in such collective self-​rule. Being reasonable, according to this line of thought, is not primarily a cognitive achievement (responding properly to evidence, drawing proper inferences, etc.).43 Rather, it is in the frst place a normative notion:  acceptance of the idea of fair cooperation with other free and equal persons.44 Tose who are unreasonable in this sense are simply not candidates for partaking in collective self-​rule in any acceptable sense.45 Teir exclusion is therefore not ad hoc but, rather, based on the very rationale of public reasoning itself.46 What about the other kind of idealization—​the idealization of the individuals who must fnd the reasons ofered acceptable? Here we need to distinguish between two moves that sometimes get confounded—​an idealization and a counterfactual.47 It is one thing to ask what an individual would consent to if asked, and quite another to ask what an ideal version of that individual would consent to. Tus, to borrow Dworkin’s example, the hypothetical consent to blood transfusion presumed of an unconscious accident victim employs a mere counterfactual: given the opportunity to express himself, this individual—​with his actual properties and dispositions—​ would presumably consent to the transfusion. Here there is no idealization, or if you like, the only thing idealized are the conditions for the expression of one’s preferences. On the other hand, behind the veil of ignorance, for example, it is the individuals who are idealized: it is not individuals as they actually are who have been hypothetically given the opportunity to express their views but, rather, idealized versions of those individuals. Tis kind of idealization, however, is problematic for the ideal of self-​rule. What we care about is actual individuals governing themselves, not their ideal counterparts.48 Deliberative democracy “ties the authorization to exercise public power” to “free discussion among equal citizens” (PPD, 160). Since it is concerned with the conditions of collective decision-​making, it does not idealize in the objectionable way. It insists that “all who are governed by collective decisions—​who are expected to govern their own conduct by those decisions—​must fnd the bases of those decisions acceptable” (PPD, 163). Tis implies that the justifcations provided for decisions must actually be acceptable to everyone. Not that they could fnd them acceptable in ideal conditions, but that given the values and commitments of these actual people, the reasons proposed are ones they can appreciate, albeit on refection, and through discussion, as valid.

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Finally, the democratic conception can also meet the challenge of self-​defeat. On this conception, public reason is not an independent requirement. If the argument is cogent, it shows that anyone committed to the idea of subjecting public authority to the shared reasoning of its subjects is also committed to confning political discussion to public reasons. Te requirement of public justifcation stems from the more fundamental idea of “collective decision-​making” (PPD, 11)—​that is, public deliberation on the basis of shared reasons.49 Tus the fact that the restriction to public reason might be contentious does not present a problem for its theoretical validity.50 2.6  A NEW BODY POLITIC In virtue of its reliance on the ideal of self-​government, then, deliberative democracy can withstand many of the attacks leveled against theories of public reason.51 Collective self-​government is, indeed, its driving idea: Te fundamental idea of democratic legitimacy is that the authorization to exercise state power must arise from the collective decisions of the members of a society who are governed by that power.52

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Articulating a theory of self-​government is what allows deliberative democracy to fulfll its aim—​namely, according to Cohen, to meet Rousseau’s venerable challenge: To fnd a form of association that will defend and protect the person and goods of each associate with the full common force and by means of which each, uniting with all, nevertheless obey only himself and remain as free as before.53 Deliberative democracy shares with the classical social-​contract theorists the conviction that this can only be realized through participation in collective self-​government.54 Tis requires the identifcation of a collective to which government can be ascribed—​a body politic. Unlike their social-​contract predecessors, however, deliberative democrats seek to achieve this not through the unifcation of wills but, rather, through shared reasoning. Its underlying insight is that while preferences can only be aggregated or bargained, reasons can be shared. Public deliberation on the basis of shared reasons can yield decisions that can be regarded as collective. What it takes for a decision to be collective—​“authorized by citizens as a body”—​is that it “arise from the collective decisions of the equal members of a society who are governed by it.”55 When a group of individuals with diferent and incompatible preferences and opinions wish to cooperate and need to choose a joint course of action, they can

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take a vote, cast a lot, or appoint someone to decide for the group. All these decision mechanisms might be fair, giving equal weight to the preferences of each, but none of them can properly be regarded as a joint decision that each member can regard as his or her own. Tus, suppose a few of us wish to go to the movies together. Each of us has a preference about what kind of movie to watch, but it is also important for each of us that we do so together. Ordinarily, we do not vote, hold a lottery, or appoint someone to decide for us. Rather, we deliberate together, taking into consideration everyone’s reasons for and against each option. Tus, the fact that one of us watched a specifc movie already can count as a reason for all of us to rule it out. Te fact that someone’s brother might proft if we go to theater A instead of theater B might not matter to everyone. Trough the activity of proposing reasons to each other and rationally considering them together, a collective decision can be reached, which each can regard him or herself as a party to, even if it difers from what one would have chosen on one’s own. Reasoning together—​that is, on the basis of reasons everyone can recognize as valid—​is a form of collective decision-​making. Binding the exercise of political power to the shared reasoning of the community “establishes the common reason and will of [the sovereign body]” and expresses the equal membership of all in that body, so the individuals subject to its decisions can be regarded as “ultimate authors” of these decisions.56 In this way, “the fundamental democratic idea” is realized—​ namely the ideal of self-​government according to which “decisions about the exercise of state power are collective,”57 and hence self-​imposed. Te subjection of public power to public deliberation provides content to the notion of a “collective authority,” of what it means “for a decision to be collective, to be made by the citizens ‘as a body.’ ”58 It constitutes, we might say, a new body politic. Unlike the older idea, the new body politic consists not of a unifed will but of a joint activity. It is a collective that decides on the basis of public reasoning among equals.59 Decisions based on public deliberation are the decisions of the “political community,” arising from “the popular will.”60 Tis, Cohen says, “may be as close as we can get to the Rousseauean idea of giving the law to ourselves.”61

2.7  DELIBERATION AND LIBERAL RIGHTS By tying the exercise of political power to public reasoning, then, deliberative democracy is government by the people. But this is also what makes it government for the people—​oriented toward the common good and protective of individual liberties.62 Te aggregative conception premised on equal consideration can accommodate religious liberty, for example, as particularly intense preferences, to

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be considered alongside all other preferences, but not their special status for those who hold them.63 Free expression can also be accommodated to the extent that it is required for satisfying the requirement of equal consideration, or as a strong preference. But the aggregative approach lacks the resources to ground the defense of forms of expression that do not contribute to political discussion “but that, nevertheless, refect what a citizen takes, for quite understandable reasons, to be compelling reasons for expression” (PPD, 167). Tese might be religious, artistic, moral, or other kinds of reasons for expression, which have nothing to do with political discourse.64 “Te deliberative conception,” on the other hand, “requires more than that the interests of all be given equal consideration in binding collective decisions; it requires, too, that we fnd politically acceptable reasons—​reasons acceptable to others, given a background of reasonable diferences of conscientious conviction” (PPD, 243, cf. 164). Given reasonable pluralism, this entails the protection of “liberties of the moderns”:  freedom of expression (including nonpolitical expression), freedom of conscience, and religious liberty. Given the requirement of public reasoning, justifcations that appeal to the falsity of religious doctrine or its confict with other comprehensive doctrines or majority opinion will be excluded from the political discussion. Appeals to the public good or aggregate utility, though admissible, will normally not count against religious, conscientious, or expressive liberties, given their typical importance.65 Te demands of religion are typically fundamental demands for their adherents. “Expressive interests,” as Cohen calls our interests in articulating publicly our thoughts, feelings, desires, talents, and so on, are also underwritten by particularly compelling considerations.66 Tus considerations like aggregate utility or public order will typically not be acceptable to those who have these interests as reasons for interfering with their liberties and, given the requirements of public reason, will not justify restriction of these liberties. Restricting liberties on the basis of reasons that individual members may reasonably reject is to “deny the person standing as an equal citizen—​to deny full and equal membership in the people whose collective actions authorize the exercise of power” (PPD, 246). It is important to note that, as we have seen, the issue is not inequality of treatment or of standing as such but, rather, the exclusion from public decision-​making. General laws that give all interests equal consideration and single out no individuals or groups treat everyone equally. Te problem for the deliberative conception—​as it is interpreted here—​lies in the reasoning process by which laws and policies that restrict religious and expressive liberties are justifed. Because it is based on considerations that some cannot see as reasons justifying interference, such reasoning “constitutes a denial of equal standing, and decisions to deny protection are not suitably collective.”67 Te issue, in other words, is not that some individuals

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or groups are singled out for special treatment, but that public power is employed on the basis of decisions that are not properly collective. “Te decision to regulate cannot be collective, in the suitable sense” (PPD, 264). Democracy rightly understood, therefore, entails the protection of liberal rights and liberties. Or, in Cohen’s words, “Egalitarian and liberal political values emerge as elements of democracy rather than as constraints upon it” (PPD, 225). Moreover, unjustifed interferences with such liberties, according to this view, are not merely ofenses against the individuals interfered with; they are illegitimate abuses of political authority and hence an ofense against all citizens.

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2.8  IDEAL AND ACTUAL DELIBERATION In the last century, the democratic ideal has come under two kinds of attacks, one conceptual and one empirical. Te conceptual critique, advanced primarily by economists and social-​choice theorists, challenges the coherence of popular control by raising doubt about voting as a vehicle for expressing public preferences.68 Te other line of attack, based on the study of political behavior, challenges the practicality of public decision-​making in light of evidence indicating severe and widespread political incompetence. Te average citizen has little knowledge and poor understanding of political afairs and even of his own interests, and his ability to make rational decisions is severely defcient.69 Deliberative democracy was devised in light of these challenges. To avoid the frst, it sets strict limits on the kinds of considerations that can enter the deliberative process, as we have seen. Furthermore, it rejects the assumption that, as David Miller noted, “prevails in contemporary liberal societies, where democracy is predominantly understood as involving the aggregation of independently formed preferences.”70 Instead, “the core of the theory,” Elster says, “is that rather than aggregating or altering preferences, the political system should be set up with a view to changing them by public debate and confrontation.”71 If the brunt of the work is done not by voting, which ought to refect independent preferences, but by deliberation in which preferences are formed on the basis of public reasons, then the paradoxes of voting and the problems of aggregation do not undermine the democratic ideal.72 But this invokes the second kind of challenge. Skeptics argue that collective decision-​making by public rational discussion is an unrealizable ideal. Most people are comprehensively ignorant and irredeemably irrational, inclined to succumb to a host of errors, biases, fallacies, and manipulations. Te response to this challenge is more complex.

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One line of argument dismisses the challenge, stressing the ideal nature of the theory:

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commitment to the normative ideal does not require commitment to the belief that collective decision-​making through mutual reason-​giving is always possible.73 But surely, as Achen and Bartels recently wrote, “it must at least be the case that the ideals are not too unrealistic.”74 Even if it is not always possible, it must sometimes be attainable.75 And not only in rare and exceptional circumstances. Te more demanding and unrealistic the conditions of its application, the less attractive the deliberative conception becomes. Moreover, since, as Cohen says, “the point of deliberative democracy is to subject the exercise of power to reason’s discipline” (PPD, 330), collective reasoning must be realized. Underlying “the principle of deliberative inclusion,” as Cohen calls it, is a conception of legitimacy which “ties the exercise of power to free reasoning among equals.”76 Such reasoning must be actual (even if not as perfect as the ideal) and its efects on the public wielding of power must be real. In Cohen’s own words, since “deliberative procedures are the source of legitimacy, . . . the social order is to be manifestly regulated by deliberative forms of collective choice” (PPD, 22–​23). Or again: “democracy, no matter how fair, no matter how informed, no matter how participatory, is not deliberative unless reasoning is central to the process of collective decision-​making” (PPD, 332). Tat is to say, deliberative democracy requires not just the possibility of reasoned public discussion but also its realization. Te aim, afer all, is “to discipline the exercise of power by actually reasoning together.”77 Te pertinent question, then, is whether the ideal can be approximated to a sufcient degree.78 2.9  THE CONDITIONS OF DELIBERATION Can reason shape politics in the way suggested by deliberative democracy? Realist skeptics argue that it can’t. Given the facts of political behavior,79 they claim, deliberation as portrayed in the theory is not something which can be realized or even meaningfully approximated. But arguing from the actual to the possible risks committing a familiar fallacy. Te fact that under existing institutions and current circumstances people display poor deliberative capacities entails nothing about what is possible under diferent conditions—​specifcally, under the conditions deliberative democracy aims to create.

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Deliberative democrats echo, indeed amplify, Tocqueville’s famous observation that “Town meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it.”80 Tis need not be the case for any public discussion, only for those structured and managed in the ways advised by deliberative democrats. Under such conditions “the efects of common deliberation seem bound to improve matters,” as Rawls put it.81 Still, collective reasoning is a tall order. Even Rousseau, who claims that “the gen­ eral will is always upright,” hastens to qualify that “it does not follow from it that the people’s deliberations are always equally upright.”82 Tree kinds of conditions are required for meaningful public deliberation: means, opportunities, and capabilities. Deliberation requires, frst, the means to freely form preferences and informed opinions. Tis requires access to information. As James Madison wrote in 1822:

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A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.83 A second essential element is opportunities for expression and discussion. Having formed preferences and opinions, individuals need to be able to freely and adequately express and discuss them. Mainly, this requires time and the appropriate institutional setting for open discussion. Te third kind of prerequisite for deliberation is deliberative capacities, both on the part of individuals and of groups.84 Deliberative democrats are well aware of the demandingness of deliberation, especially in light of the gap “between Democracy’s convictions, aspirations, and the People’s crudeness, vice, caprice,” as the avid champion of democracy, Walt Whitman, put it.85 Cohen does not shy away from the challenge: “we cannot simply assume that large gatherings with open-​ended agendas will yield any deliberation at all” (PPD, 35). Deliberation requires that citizens have the capacity and opportunity for rational thought and that they be “prepared to constrain their conduct by referring to norms of honesty, sincerity, and full disclosure rather than simply taking the most efective means to their ends” (PPD, 237). Deliberative democracy, therefore, “requires attention to encouraging deliberative capacities, which is, inter alia, a matter of education, information, and organization” (PPD, 329–​30). All this is demanding enough, but it can be especially challenging when the object of discussion is politics, since, as Schumpeter put it, the typical citizen drops down to a lower level of mental performance as soon as he enters the political feld. He argues and analyzes in a way which he would

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readily recognize as infantile within the sphere of his real interests. He becomes a primitive again.86 To mitigate the challenge, deliberative democrats stress the social, pedagogic, and psychological efects of deliberative institutions. Tey claim that democratic institutions, in which citizens can gather to voice their opinions, listen to and discuss the opinions of others in rational, civil fashion, provide opportunities for deliberation.87 Living under such institutions and engaging with them will also foster deliberative capacities among citizens. “Te practice of presenting reasons,” Cohen writes, “will contribute to the formation of a commitment to the deliberative resolution of political questions” (PPD, 26). Engaging with deliberative institutions “shapes the identity and interests of citizens.”88 Elster states as one of the view’s “two main premises” the assumption that “over time one will in fact come to be swayed by considerations about the common good” and that “by speaking with the voice of reason, one is also exposing oneself to reason.”89 Tis assumption of institutional socialization, as I  will call it—​namely that democratic institutions tend to cultivate citizens moved by the common good and inclined to make decisions by public reasoning—​has two shortcomings. First, the self-​reinforcing efects of deliberative institutions are only operative once such institutions are up and running. Teir tendencies to foster concern for the common good, as well as deliberative capacities and commitment to resolving political questions through public reasoning, can support the self-​perpetuating tendency of deliberative institutions, not their formation.90 In order to form social institutions that provide the means and opportunities for public deliberation, individuals must, presumably, already have deliberative capabilities and a tendency to employ them in decision-​making. As Aristotle claimed, this requires proper upbringing: in order to listen appropriately to discussion about what is fne and just, i.e., about the objects of political expertise in general, one must have been well brought up.91 Ensuring that people are well brought up calls for the establishment of proper pedagogic and cultural practices and institutions. Since the state normally shapes the formation and the functioning of such institutions, it needs to be democratic and deliberative, which in turn requires a population that is democratically inclined. We can call this the problem of origin. Te second problem concerns sustainability. Even if the assumption of institutional socialization is true and democratic institutions have the social efects

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claimed,92 to enable public deliberation they must not be undercut by contrary infuences.93

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2.10 DEMOCRACY BEGINS AT HOME Democratic theorists have long been sensitive to the decisive infuence of substate associations over citizens’ attitudes, beliefs, values, and sensibilities. Schools, social clubs, religious associations, the family, cultural communities, and, of course, various kinds of media—​all have undeniable infuence over citizens’ hearts and minds. Tis has been a fundamental premise of political thought since Plato’s Politeia. Individuals growing up in communities preaching ethnic or racial supremacy are likely to internalize these ideas. Tus, as Dewey put it, “Democracy must begin at home, and its home is the neighborly community.”94 Te order of priority here is important:  although deliberative democratic institutions can contribute to it, the establishment of democratically oriented domestic and communal environments is a condition of deliberative democracy, not its outcome. Tis is why Walt Whitman insisted that: “democracy can never prove itself beyond cavil, until it founds and luxuriantly grows its own forms of art, poems, schools, theology, displacing all that exists, or that has been produced anywhere in the past, under opposite infuences.”95 Displacement might be too strong, but by the logic of institutional socialization, democratic institutions must surpass its competitors for infuence. Communist Yugoslavia was no deliberative democracy. Yet its federal institutions embodied the vision of “Brotherhood and Unity” among its various ethnic and religious groups impressed by Tito. “Te rising post-​war generation was encouraged to think of itself as “Yugoslav,” rather than “Croat” or “Macedonian”; and many . . . had adopted the habit.”96 Nevertheless, nationalist sentiments and ethnic chauvinism persisted in churches, schools, communities and families. Among both Serbs and Croats, it became common to regard Muslims as inferior, non-​European foreigners. When war broke out between them, Bosnian Muslims sufered ethnic cleansing and genocide. In my native country, Israel, many of the institutions of the dominant religious denomination—​ namely orthodox Judaism—​ unabashedly profess and promote an ideology of ethno-​religious supremacy. Some of the main political parties espouse policies explicitly premised on such nonegalitarian views. As predicted by the assumption of institutional socialization, growing up under the infuence of such institutions, almost half of young Israelis express support for denying political rights to Arab citizens and a majority believe that they do not deserve equal

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treatment. Children studying in religious schools are routinely taught that Jews are superior to non-​Jews and that religious law supersedes secular democratic principles. Consequently, 64 percent of them support the idea of expelling Arabs from the country and 82 percent believe that religious law should take precedence over democratic principles.97 Unfortunately, neither the Balkans nor Israel is unique in this regard. Most countries, if not all, have to cope with local and communal associations promoting anti-​democratic sentiments and views, which are ofen better entrenched than formal political institutions. Teir infuence can be detrimental to deliberative democracy. As Dewey noted, “the family and neighborhood, with all their defciencies, have always been the chief agencies of nurture, the means by which dispositions are stably formed and ideas acquired which laid hold on the roots of character.”98 It is due to this observation that Dewey stressed the indispensability of reshaping substate associations for a democratic state, by which he meant a deliberative democracy:

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Tat expansion and reinforcement of personal understanding and judgment by the cumulative and transmitted intellectual wealth of the community which may render nugatory the indictment of democracy drawn on the basis of the ignorance, bias and levity of the masses, can be fulflled only in the relations of personal intercourse in the local community.99 Te disruptive potential of substate associations seems to be entailed in the premises of the deliberative democratic argument itself. To see this, note that the assumption of institutional socialization comes up at another point in the argument. Deliberative democracy, as we have seen, assumes ineliminable pluralism about what Rawls called “comprehensive doctrines.” Tis is what gives rise to the restrictions of public reason. At the same time, it assumes that there can be agreement about political ideas—​specifcally, about the conception of political justifcation in terms of deliberation among free and equal citizens.100 To establish this, Cohen argues: While it is implausible to expect agreement on political values to result from a convergence of practical reasoning conducted within diferent, independent moral traditions, it is not so implausible to expect important elements of political consensus to emerge from the acquisition of ideas and principles embodied in shared institutions. Te acquisition of political ideals and values proceeds in part through participation in common, public institutions of various kinds. (PPD, 228)

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But this knife cuts both ways—​if democratic institutions cultivate democratic inclinations, then non-​democratic ideas and principles embodied in shared substate institutions presumably engender the opposite tendencies.101 Indeed, as Cohen proceeds to claim, the formation of moral-​political ideas and sensibilities proceeds less by reasoning or explicit instruction . . . than by mastering ideas and principles that are expressed in and serve to interpret these institutions. Tus people living within institutions and a political culture shaped by certain ideas and principles are likely to come to understand those ideas and principles and to develop some attachment to them. (PPD, 228) But this means that creating democratic political institutions may not be enough. Non-​democratic and non-​egalitarian institutions, exerting the opposite infuence over citizens’ hearts and minds, may have to be eliminated, or at least their infuence must be ofset. Te question is whether this can be achieved without infringing on individual rights and liberties.

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2.11  DELIBERATION AND RIGHTS Public deliberation on terms of freedom and equality, then, requires curbing anti-​democratic infuences, which undeniably abound in many contemporary societies. But is their infuence really so powerful? And what does it take to overcome it? To be sure, not every anti-​democratic infuence has to be eliminated for democracy to thrive. Well-​formed democratic institutions can withstand some opposition. And even if the force of opposing infuences is strong, perhaps deliberative institutions have within them the resources to ward of the threats? Answering these questions conclusively and comprehensively is obviously beyond the scope of any single chapter. Nevertheless, there are some indications that under the conditions prevailing in many contemporary societies, creating the conditions necessary for public deliberation may not be compatible with categorical adherence to liberal rights. Consider freedom of expression. According to the deliberative conception, free expression is protected “because what is good is fxed by public determination, and not prior to it. It is fxed by informed and autonomous judgments, involving the exercise of the deliberative capacities” (PPD, 33). But free speech is a double-​edged sword: freedom of expression is also the freedom of intolerant, bigoted, deceptive, and infaming expression.

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Mass media introduce further complications.102 Fabricated news stories—​ according to which “FBI agent suspected in Hillary email leaks found dead in apparent murder-​suicide,” or that the pope had endorsed Donald Trump—​may or may not have swayed the 2016 presidential election in the United States,103 but they certainly made public deliberation signifcantly less feasible. Media outlets promoting racism, sexism, and other kinds of bigotry are likely to have a devastating efect on the possibility of public deliberation, especially if they employ sly persuasion tactics known to be psychologically efective. As Umberto Eco, himself a victim of fascist propaganda, once wrote “Freedom of speech means freedom from rhetoric.”104 But how can the public be liberated from rhetoric without restricting free speech? To be sure, some of the adverse efects can be addressed by various regulatory mechanisms consistent with individual rights, such as anti-​defamation laws, product information regulations, breaking up media monopolies, and so on. But it is doubtful whether these can sufce for meeting the demanding conditions of public deliberation. Recall that not just any outcome of public discussion is acceptable for deliberative democrats. Te process must refect the genuine views and preferences of the community as expressed by its members, reasoning together. Deliberative democracy therefore requires autonomy, ruling out (at least some kinds of ) adaptive and accommodationist preferences—​that is, preferences adopted by the pressure of circumstances and not through the exercise of the agent’s deliberative capacities (PPD, 27). By the same logic, it must also rule out preferences that are the outcome of demagogy, emotional manipulation, and deception.105 Absent robust defenses against such infuences, “the passions, not the reason, of the public would sit in judgment,” as Madison warned.106 Cohen quotes Madison’s following sentences:  “it is the reason, alone, of the public, that ought to control and regulate the government . . . the passions ought to be controlled and regulated by the government.”107 But controlling and regulating public passions might require censuring certain opinions and restricting certain forms of expression and association. Counting on the invisible hand of competition in the marketplace of ideas to weed out deception and manipulation might be too optimistic. Te availability of credible, reliable sources of information is not enough to ofset the infuence of duplicitous and bigoted outlets. Te existence of NPR (National Public Radio) does not sufciently counteract the efects of Fox News. Anti-​defamation laws and other kinds of content regulation consistent with robust defense of free speech may eliminate certain kinds of intentional falsifcation, but they do not seem capable of reining in the propagation of false information, biased reporting, unbalanced analysis, selective editing, distortions, fabrications, and emotional manipulations. Te proliferation of new media platforms apparently exacerbates the problem.108 Data about the efects of new media are partial, but there

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is evidence to suggest that at least some of them target (by design or inadvertently) irrational, emotional, and subconscious mental triggers.109 Most of these media are highly accessible, with global availability and minute entry costs, and are driven by the aim of maximizing engagement. Tis makes them notoriously prone to sensationalism and extremism, to the detriment of rationality, complexity, and truth.110 Employed by crafy fundamentalists, extremist, or egoistic miscreants, such instruments enhance the impact of these democratic menaces. Curbing them apparently requires the imposition of restrictions on content that go well beyond restricting false advertising, defamation, and general regulation intended to ensure a plurality of opinions.111 Substantive restrictions may have to be imposed on the expression of intolerant and anti-​democratic ideas, as well as on religious expression and possibly on certain forms of association. Procedural conceptions of democracy can presumably tolerate higher levels of anti-​democratic sentiments and opinions so long as those do not signifcantly infect the political institutions. Deliberative democracy, however, is more demanding of public opinion than nondeliberative forms of democracy. To deliver genuine public deliberation, political institutions and norms must be supported by a widely shared democratic ethos—​that is, a publicly manifest commitment to collective decision-​ making on the basis of freedom and equality. Te cultivation and preservation of such an ethos is apparently incompatible with widespread intolerant, non-​egalitarian, anti-​ democratic sensibilities. In other words, to “ensure a public culture of reasoned discussion on political afairs” (PPD, 224), it is necessary to stave of infuences that tend to sabotage it. But it is difcult to see how this can be done without violating individual liberties. Deliberative democrats might argue that the coercive elimination or removal of subversive infuences is not the only or best way to defend public discourse. Perhaps some forms of democratic engagement can overcome or at least signifcantly curb these infuences, without having to resort to drastic regulation. In his contribution to this volume, Archon Fung names fve “ethical and normative commitments” and provides a list of sensible norms and restrictions, which, if adopted, can certainly mitigate some of the challenges to public deliberation. Te obvious question is how to cultivate the commitment to these norms, which seems particularly challenging in view of the fact that “politicians, advocates, media and citizens . . . have powerful self-​interested reasons to ‘pollute the commons’ of democratic procedures.”112 One natural proposal is education, particularly civic education.113 But the problem of origin resurfaces. Education systems are embedded in communities and political institutions. In order to instill democratic values and deliberative norms in children, such values and norms must already be endorsed by their parents and by their communities so as to inform their institutions. And it is particularly difcult

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to see how such norms can be infused in groups and communities with nonliberal values, short of imposition from above (think of educating the children of fundamentalist evangelicals to tolerate and respect gay people, for example). Furthermore, even if imposed by the state against the will of parents, it must also be shown that such pedagogic eforts can overcome the infuences of other local forces, pulling in the opposite direction. Civic education, afer all, is “not limited to schooling and the education of children and youth. Families, governments, religions, and mass media are just some of the institutions involved in civic education, understood as a lifelong process.”114 Even if norms and standards can be successfully inculcated among many citizens, elected representatives, and ofcials, this may not sufce. So long as there remain enough who are willing to take advantage of the opportunities to promote their interests even at the expense of the “democratic commons,” a downward spiral seems inevitable. In their recent Phishing for Phools, George Akerlof and Robert Shiller provide a forceful argument for the claim that in free competitive markets, the possibility of exploiting human weaknesses will likely entail their exploitation. “Unregulated free markets rarely reward  .  .  .  those who restrain themselves from taking advantage of customers’ psychological or informational weaknesses. Because of competitive pressures, managers who restrain themselves in this way tend to be replaced by others with fewer moral qualms.”115 Consequently, even individuals and frms who are not malicious and are otherwise willing to respect the norms will be driven to violate them in order not to lose out: “in the resulting market equilibrium, if there is an opportunity to phish, even frms guided by those with real moral integrity will usually have to do so in order to compete and survive.” Akerlof and Shiller call this a “Phishing equilibrium”: “if one person does not take up the opportunity for proft, it will be taken up by someone else.”116 In politics, where the stakes are high and the opportunities for deception and manipulation abound, the invisible hand of electoral competition will all but guarantee their exploitation. Te emergence of such a phishing equilibrium casts doubt on the efcacy of ethical standards alone, unbacked by regulation and sanction.117 To support deliberation, these will presumably have to be quite robust—​possibly too robust to be compatible with a comprehensive defense of liberal rights. Consider free speech again. Te malignant efects of money in American politics are by now a cliché. To address it, many have proposed restricting campaign donations and the activity of political action campaigns (PACs). Among the key provisions of the McCain–​Feingold act of 2002 (or the Bipartisan Campaign Reform Act), for example, was the prohibition on corporations (including nonprofts) to sponsor ads naming particular candidates close to an election. Te standard argument in support of regulating campaign fnance appeals to equality—​specifcally, to the idea of “equal opportunity for political infuence.”118 But the threat of unregulated

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political speech to public deliberation is not only due to the unequal infuence (or opportunities for infuence) it ofers to moneyed interests at the expense of the common good. Cultivating and sustaining a deliberating public takes more than just leveling the expressive playing feld. It also requires the active elimination of deliberation-​corrupting forms of expression. Incendiary rhetoric, deceptive information, infammatory images, and manipulative campaigns have become a mainstay of political life. Proft-​driven news media and unregulated social media dramatically exacerbate their pernicious efects on public discourse. Writing for the majority in Citizens United v.  Federal Election Commission, Supreme Court Justice Anthony Kennedy argued that “Te right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition of enlightened self-​government and a necessary means to protect it.” But the overwhelming evidence indicates that as it is ordinarily understood (and as it was understood by the majority in Citizens United)—​without interventions that restrict the contents of deceptive, manipulative, and inciting forms of expression—​free political speech ofen undermines rather than facilitates “enlightened self-​government,” at least under the deliberative interpretation of this idea. Te tradeof is clear: the more we demand of democracy, the more demanding its conditions and, consequently, the more structure that has to be in place to enable it. If democracy is to deliver not only fair procedures and equal consideration of individual preferences but also “a way to realize in actual political life an ideal of justifcation through pubic reason-​giving” (PPD, 8), the barriers set before subversive infuences may need to be substantial, not only mitigating inequality in the distribution of expressive opportunities but also restricting certain forms and contents of political speech. Deliberative democracy, in other words, may not be compatible with free speech liberally understood and with certain forms of association (promoting anti-​democratic sentiments, for instance). As the commitment to individual liberty and rights is foundational for most (if not all) deliberative democrats, this is not only a critique but also an internal challenge for their theory.

2.12 CONCLUSION In conclusion, I have advanced four claims: (1) Deliberative democracy is best understood not in terms of equal treatment but, rather, as driven by the ideal of self-​ government taken as a condition of legitimacy; (2) It proposes to realize this ideal by introducing a conception of the body politic as constituted by public reasoning on the basis of shared reasons; (3) Tus understood, the theory overcomes some of the standard objections to public reason accounts of political legitimacy, as well as

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so-​called realist challenges to democracy; But, (4)  given deliberative democracy’s own assumptions about the socializing efects of political institutions, implementing public reasoning might require imposing limitations on the exercise of individual liberties. Note that this is not a form of realist skepticism.119 Realists question the realizability of deliberative democracy in light of people’s manifest incompetence at conducting deliberative discussion and making rational decisions. Te present worry concerns the implications of the conditions required for producing competent deliberation by citizens in the public sphere, particularly their implications for rights. While the realist critique questions the ideal of deliberative democracy from the outside, as it were, the concern here is internal: deliberative democracy aims “to mirror a system of ideal deliberation in social and political institutions” (PPD, 21). Tis means that it must eradicate infuences that derail deliberation. Some of these infuences arise from social infuences to which the theory is committed by its own assumptions (specifcally the assumption of institutional socialization). To stave of such infuences apparently might require interventions that seem incompatible with robust protection of individual rights. Rather than questioning the realizability of the ideal, the present argument challenges its coherence as a liberal ideal for people “taken as they are,” to borrow Cohen’s egalitarian paraphrase of Rousseau.120 Note that the claim here is not that deliberative democracy is a priori incompatible with the protection of liberal rights. What I take the argument to have shown is that the corrupting infuences of anti-​democratic, deliberation-​subverting substate associations put real pressure on the liberal aspirations of deliberative democracy. To meet this challenge, deliberative democrats need an account of how the corrupting infuences that seem to naturally arise from the circumstances of public discussion can be eliminated without restricting liberal rights. Otherwise, what they ofer is not a liberal democracy but, rather, a democracy for liberals. Notes 1. Te aim here is merely to capture the intuition. Whether a single value can give rise to conficting normative requirements is a separate and complex question. 2. Joshua Cohen, Philosophy, Politics, Democracy: Selected Essays (Cambridge, MA: Harvard University Press, 2009), 158, cf. 242–​43; hereafer, PPD. 3. PPD, 5. 4. See Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989); PPD, 158. 5.  See PPD, 158–​60, 242f.; and see Joshua Cohen, “Review of Democracy and Its Critics,” Journal of Politics 53, no. 1 (1991): 221–​25. In his attempt to derive individual liberties from the principle of equal consideration, Dahl also employs the claim that individuals are the best judges

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of their own interests (see Dahl, Democracy and Its Critics). Tis invokes a host of issues (which Cohen does not raise) concerning familiar fallacies and biases that have been robustly empirically demonstrated. 6. See PPD, 10. 7. Cohen, “Review of Democracy and Its Critics,” 224. 8. See PPD,  20–​21. 9. Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000), 4. 10. Te most rigorous and comprehensive argument of this kind has been developed by Joshua Cohen. (See especially, though by no means exclusively, “Procedure and Substance in Deliberative democracy” and “Democracy and Liberty,” both in PPD.) Tough I focus on Cohen’s theory, the argument applies to deliberative democracy in general. 11. Tis section, and sections 2.6 and 2.9, draws from parts of Assaf Sharon, “Populism and Democracy: Te Realist Challenge to Deliberative Democracy,” European Journal of Philosophy. https://​doi.org/​10.1111/​ejop.12400. 12.  V. Gourevitch (ed.), Rousseau:  “Te Social Contract” and Other Later Political Writings (Cambridge: Cambridge University Press, 1997), I, vi (p. 50). 13. Gourevitch, Rousseau: “Te Social Contract,” I, vi (pp. 49–​50). An important, yet sometimes neglected, aspect of Rousseau’s account of political association is the psychological transformation that individuals must undergo in order to form the kinds of emotional bonds of solidarity and identifcation that political association consists in. (See Avner Inbar, “Rousseau’s Political Psychology,” dissertation, University of Chicago, 2016, ch. 4. For a diferent interpretation, see Joshua Cohen, Rousseau: A Free Society of Equals [Oxford: Oxford University Press, 2010], 122f.) 14. E. Curley (ed.), Hobbes: Leviathan: With Selected Variants fom the Latin Edition of 1668 (Indianapolis: Hackett Publishing Company, 1994), ch. xvii (p. 109). 15. Curley, Hobbes: Leviathan, ch. xvi (p. 104). See Quentin Skinner, “Hobbes and the Purely Artifcial Person of the State,” Journal of Political Philosophy 7, no. 1 (2002): 1–​29. 16.  Curley, Hobbes:  Leviathan, ch. xvii (pp.  109, 112); also see ch. xvi (p.  104) and ch. xxii (p. 147). 17. Tis framework is shared by others in the tradition, such as Spinoza and Locke. (For more, see my “Populism and Democracy.”) 18. For arguments of this kind against deliberative democracy, see Russell Hardin, “Deliberative Democracy,” in Contemporary Debates in Political Philosophy, ed. Tomas Christiano and John Christman (London:  Wiley-​Blackwell, 2009); Michael Huemer, Te Problem of Political Authority:  An Examination of the Right to Coerce and the Duty to Obey (London:  Palgrave Macmillan, 2012), 61–​64; and Jason Brennan, Against Democracy (Princeton, NJ:  Princeton University Press, 2016), 58–​73. 19.  I  think these kinds of “realist” arguments have to be distinguished from realism, as the opposition to the conception of political philosophy as applied ethics (as, for example, urged in diferent ways by Bernard Williams and Raymond Geuss). For a similar distinction, see David Miller, “In What Sense Must Political Philosophy Be Political?” Social Philosophy and Policy 33 (2016):  155–​74, who classifes Geuss in the former category, which he labels “hyper realism.” 20. And see Joshua Cohen, “Te Arc of the Moral Universe,” in Te Arc of the Moral Universe and Other Essays (Cambridge, MA: Harvard University Press, 2011).

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21. Conditions of legitimacy may of course include epistemic standards; see, for example, David Estlund, Democratic Authority: A Philosophical Framework (Princeton, NJ: Princeton University Press, 2009). 22. Jonathan Quong also mentions respect for people as ends, but, for reasons I cannot elaborate here, I think this ultimately collapses into either the liberty argument or the justice argument; see Jonathan Quong, “On the Idea of Public Reason,” in A Companion to Rawls, ed. Jon Mandel and Davil A. Reidy (London: Wiley-​Blackwell, 2013), 271f. 23. John Rawls, Political Liberalism (New York: Columbia University Press, 2005), 9. 24. Quong, “On the Idea of Public Reason,” 273. 25. Jonathan Quong, “Public Reason,” in Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, https://​plato.stanford.edu/​archives/​sum2013/​entries/​public-​reason/​. Had public reason been grounded in consent, it would be subject to the standard objections to the normative force of consent under idealization (on which more later). 26. Quong, “On the Idea of Public Reason,” 273–​74. 27. Joseph Raz, “Disagreement in Politics,” American Journal of Jurisprudence 43 (1998): 28. 28. Tis distinction is easily seen when presented formally: it is the diference between I believe that (p because q) and p because I believe that q. Te latter entails that the truth of p depends on my belief in q, but the former does not (see Raz, “Disagreement in Politics,” 27–​28). 29. It is a separate question of course whether the doctrine itself violates equality. 30.  Joseph Raz, “Facing Diversity:  Te Case of Epistemic Abstinence,” Philosophy & Public Afairs 19 (1990): 3–​46; and Raz, “Disagreement in Politics”; see also G. A. Cohen’s objection in PPD,  39–​40. 31.  It may be worth mentioning that Cohen began with a conception of democracy “as a compelling normative idea, requiring that people be treated as equals in the process of collective decision-​making” (PPD, 6), but moved away from this conception when he realized that it was “too thin” toward a conception of democracy as “reasoning together as equals on matters of common concern” (7). Tis conception, I suggest, is best understood as grounded in the ideal of self-​government. 32. Raz, “Disagreement in Politics,” 32. 33. David Enoch, “Against Public Reason,” in Oxford Studies in Political Philosophy, ed. David Sobel, Peter Vallentyne, and Steven Wall (Oxford: Oxford University Press, 2015), 1:118. 34. Raz, “Disagreement in Politics,” 33f. 35. See Ronald Dworkin, Taking Rights Seriously (London: Gerald Duckworth, 1997), ch. 6 and more later. 36. Steven Wall, “Is Public Justifcation Self-​Defeating?,” American Philosophical Quarterly 39 (2002): 385–​94; and Raz, “Disagreement in Politics”; both present this as a general argument against neutrality principles. Quong (“On the Idea of Public Reason”) presents it as a problem for autonomy-​based arguments for public reason. 37. See Wall, “Is Public Justifcation Self-​Defeating?” 38.  See David Estlund, “Te Insularity of the Reasonable:  Why Political Liberalism Must Admit the Truth,” Ethics 108 (1998): 252–​75. 39. Quong, “On the Idea of Public Reason,” 271. 40. For the centrality of the idea of self-​government, see PPD, 17, and references in 17n2 and 335; Cohen, Arc of the Moral Universe, 262; Seyla Benhabib, “Towards a Deliberative Model of Democratic Legitimacy,” in Democracy and Diference, ed. S. Benhabib (Princeton:  Princeton

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University Press, 1996); Amy Gutmann and Dennis Tompson, Why Deliberative Democracy? (Princeton, NJ: Princeton University Press, 2004), 3; Bernard Manin et al., “On Legitimacy and Political Deliberation,” Political Teory 15, no. 3 (1987); Tomas Nagel, Equality and Partiality (Oxford: Oxford University Press, 1995), 36; and Rawls, “Te Idea of Public Reason” in his Political Liberalism, 218. Te idea of “collective decisions” as opposed to ideal fairness is pivotal in Cohen’s deviation from Rawls (see sec. 1 of “Deliberation and Democratic Legitimacy,” PPD, 17–​21). 41. PPD, 1. Some supporters of deliberative democracy do not appreciate the full force of the critique, responding with a reiteration of the demand of public justifcation, which in this context is question begging, as long as it is not supported by the idea of self-​government (see, e.g., Guttman and Tompson, Why Deliberative Democracy, 43–​45). 42. Tis is why public justifcation is not only desirable or valuable but also a condition of legitimacy—​because “free deliberation among equals is the basis of legitimacy” (PPD, 22). 43. See Wall, “Is Public Justifaction Self-​Defeating?,” 386. 44. See PPD, 226, 233; and Quong, “On the Idea of Public Reason,” 268. Tus characterized, the exclusion of the unreasonable is not vulnerable to the sharp criticisms Raz levels against Rawls and Nagel (see Raz, “Disagreement in Politics,” 34). 45. Tis is probably too quick, since much will depend on the proper interpretation of “free and equal” in the previous sentence, but I leave this for another occasion. 46. PPD, 226; see also Guttman and Tompson, Democracy and Disagreement, 55. Tere is a separate problem if rejecting the ideal of public reason is grounds for unreasonability, since this would entail implausibly restrictive conditions for participation. 47.  See Assaf Sharon, “Domination and the Rule of Law,” in Oxford Studies in Political Philosophy, ed. David Sobel, Peter Vallentyne, and Steven Wall (Oxford: Oxford University Press, 2015), 2:136. 48. Note that this is not an objection to veil-​of-​ignorance arguments for justifying principles of justice, only to consent-​based theories of legitimacy. 49.  As Cohen specifes, the ideal of public deliberation is “a political ideal, not tied to an encompassing moral outlook. Te idea was not that people ought to reason about everything, or guide their personal choices by refective, autonomous judgment, or that the unexamined life is not worth living, but that the legitimacy that emerges from democratic collective choice refects the role of reason-​giving—​of a kind of mutual justifcation—​in the process” (PPD, 8; see also Cohen, Arc of the Moral Universe, 262). Earlier versions of the argument, which rely on the possibility of consensus about the value of certain “moral powers” and what they entail regarding political justifcation, do seem to me vulnerable to the self-​defeat argument (see particularly “Moral Pluralism and Political Consensus,” in PPD). 50. Another way to make the point is that it is a condition of the legitimacy of a political decision that it be based on reasons that everyone can accept. Tis idea itself is not a collective decision (but a conception of legitimacy) and therefore is not subject to the requirement. 51. See note 41. Tis is not to deny its instrumental benefts (see James Fearon, “Deliberation as Discussion,” in Deliberative Democracy, ed. Jon Elster (New York: Columbia University Press, 1998), 44–​68; Gutmann and Tompson, Why Deliberative Democracy, ch. 1. 52.  PPD, 154; cf. 223, 264. Iris Marion Young makes essentially the same point in terms of inclusion: “the normative legitimacy of a democratic decision depends on the degree to which those afected by it have been included in the decision-​making process”; Young, Inclusion and Democracy,  5–​6.

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53. Gourevitch, Rousseau: “Te Social Contract,” I, 6 (p. 49). 54. For Cohen’s view, see particularly “Moral Pluralism and Political Consensus.” 55.  PPD, 224. “Te deliberative democrat emphasizes that democracy is not simply about treating people as equals in a process of collective decision-​making, or about fair bargaining among groups, but also about reasoning together as equals on matters of common concern” (7). 56.  PPD, 265, 189. In a more recent essay, Cohen wrote:  “members can—despite disagreement—all regard their conduct as guided, in general terms, by their own reason” (PPD, 336). In “Directly Deliberative Polyarchy,” Cohen and Sable describe arrangements that are neither fully public, since they operate independently of the direct dictates of legislatures, nor private, since they solve problems by discussion rather than by assignment of ownership rights (PPD, 185). For more on how deliberative democracy constitutes a form of political community, see PPD, 264f. 57. PPD, 163, 264. Tis also answers Fearon’s question: “why this deliberation has to involve discussion [or mutual reason-​giving (a.s.)] rather than being a solitary afair”; Fearon, “Deliberation as Discussion,” 61. 58. PPD, 154. Habermas talks about “a discursive formation of will and opinion on the part of a public composed of the citizens of a state” (“Further Refections on the Public Sphere,” PPD, 446). Cohen at one point describes the deliberative procedure as “the formation of the will” (29). 59.  Cohen writes:  “democracy is a political arrangement that ties the exercise of collective power to reason-​giving among those subject to collective decisions” (PPD, 328). 60. PPD, 154n1. For more on political community, see 264–​65. 61. Tis point is sometimes overlooked, particularly by critics of deliberative democracy’s account of legitimacy; see, for example, Huemer, Problem of Political Authority,  63–​64. 62. My focus here is on the protection of individual liberties. For the connection between deliberative democracy and the common good, see PPD,  25–​27. 63. PPD, 164–​66, 243f. 64. PPD, 113–​20, 166–​68, 248f. 65. PPD, 244f. 66. Joshua Cohen, “Freedom of Expression,” in PPD and PPD, 249f. 67. PPD, 250, emphasis added. 68.  Te locus classicus is Kenneth Arrow, Social Choice and Individual Values (Hoboken, NJ: John Wiley, 1951). For the implications for democratic theory, see William Riker, Liberalism against Populism: A Confontation Between the Teory of Democracy and the Teory of Social Choice (Long Grove, IL: W.H. Freeman, 1982). 69. Most notably Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper & Bros., 1942); other classics include Walter Lippmann’s Public Opinion and Te Phantom Public, and Niebuhr’s Moral Man and Immoral Society; see also note 80. 70.  David Miller, “Deliberative Democracy and Social Choice,” Political Studies 54, no.1 (1992): 55n1. 71. Jon Elster, “Te Market and the Forum,” in Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman, William Rehg (Cambridge, MA:  MIT Press, 1997), 11. And see PPD, 31; and Adam Przeworski, “Deliberation and Ideological Domination,” in Deliberative Democracy, 140. 72.  Jon Elster describes the view that:  “the central concern of politics should be the transformation of preferences rather than their aggregation. On this view the core of the political

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process is the public and rational discussion about the common good, not the isolated act of voting according to private preferences”; Jon Elster, Sour Grapes:  Studies in the Subversion of Rationality (Cambridge: Cambridge University Press, 2014), 35. See also PPD, 31–​32; and Miller, “Deliberative Democracy and Social Choice.” 73. PPD, 340. For a general defense of ideal theories, see David Estlund, Utopophobia: Political Philosophy Beyond the Feasible (forthcoming). 74. Christopher H. Achen and Larry M. Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government (Princeton, NJ: Princeton University Press, 2016), 7. 75. See Cohen, Arc of the Moral Universe, 263. 76. PPD, 232. “Te core of the deliberative conception,” Cohen writes in a more recent essay, is “justifcation through public reasoning” (Arc of the Moral Universe, 273). 77. PPD, 334, emphasis added. And elsewhere: “we need to build into the actual process of political decision-​making the conclusions of idealized, hypothetical deliberation” (Arc of the Moral Universe, 286). 78.  Establishing this raises additional complex issues, which I  do not address here, concerning the relation between ideals and their approximation (see Avishai Margalit, “Ideals and Second-​Bests,” in Philosophy for Education 77, ed. Seymour Fox ( Jerusalem: Van Leer Jerusalem Institute, 1983). 79. Typical arguments note fndings regarding citizens’ ignorance of political matters (Philip Converse, “Te Nature of Belief Systems in Mass Publics,” in Ideology and Discontent, ed. D. E. Apter (New York: Free Press of Glencoe, 1964)and many others following). For helpful overview, see Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (Stanford, CA: Stanford University Press, 2013)>; susceptibility to various kinds of biases (Brennan, Against Democracy, ch. 2, summarizes some pertinent research); unwillingness to engage in political discussion (see John R. Hibbing and Elizabeth Teiss-​Morse, Stealth Democracy: Americans’ Beliefs About How Government Should Work [Cambridge:  Cambridge University Press, 2002]); and even aversion to debate (see Nina Eliasoph, Avoiding Politics: How Americans Produce Apathy in Everyday Life [Cambridge: Cambridge University Press, 1998]), inability to assess evidence properly, to draw valid inferences, or to vote on issues as opposed to social identities and party loyalties (see Achen and Bartels, Democracy for Realists, esp. chs. 2,3,10, for a helpful summary). 80. Alexis de Tocqueville, Democracy in America I, 5. 81.  John Rawls, A Teory of Justice (Cambridge, MA:  Harvard University Press, 1971), 359. Habermas similarly argues that proper political discourse can “rationally change prepolitical attitudes, need interpretations, and value orientations” ( Jurgan Habermas, Between Facts and Norms [Cambridge, MA: MIT Press, 1998], 309), and see more following. 82. Gourevitch, Rousseau: “Te Social Contract,” II, 3 (p. 59). 83. James Madison, letter to W. T. Barry, 1822, https://​www.loc.gov/​resource/​mjm.20_​0155_​ 0159/​?sp=1&st=text. 84. Note that deliberative capacities include not only the ability to reason properly, but also the discipline to act on the conclusions of one’s reasoning, since, as Cohen says, “Deliberation, generically understood, is about weighing the reasons relevant to a decision with a view to making a decision on the basis of that weighing” (PPD, 329). 85. Walt Whitman, Democratic Vistas, 1871. 86. Schumpeter, Capitalism, Socialism and Democracy, 262.

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87. Tis is not strictly true since, presumably, the free formation of opinions and adoption of preferences also requires a certain degree of independence, at least from blatant forms of manipulation, which, arguably, will require the kinds of restrictions discussed in section 2.11. 88. PPD, 19; see also 190, 228, 238. 89. Elster, “Market and Forum,” 12; and Elster, Sour Grapes, 36. 90. An analogous problem arises with respect to Rawls’s account of stability in his Teory of Justice. 91. Aristotle, Nicomachean Ethics, 1095b4. 92. I set aside doubts about the force of institutional socialization, but note that regardless of whether it is based on dissonance reducing pressures, as Elster suggests, or on decline of symbolic utility, as Cohen writes following Nozick (PPD, 239n22), in most cases its force is not expected to be great, so there is no a priori reason to assume it will be greater than other social pressures. 93.  Various theorists address the enabling conditions of public deliberation:  Fishkin and Ackerman proposed the formal institution of a national “deliberation day” and dispensation of monetary incentives for participation (Bruce Ackerman and Jame S. Fishkin, Deliberation Day [New Haven, CT: Yale University Press, 2005]); Mansbridge and Young stressed the importance of making assemblies accessible and cutting work hours (Archon Fung. “Deliberation’s Darker Side,” National Civic Review 93, no. 4 [2004]: 47–​54). Few address the infuences that tend to sabotage deliberation. 94. John Dewey, Te Public and Its Problems (New York: Henry Holt, 1927), 229. 95. Whitman, Democratic Vistas. 96. Tony Judt, Postwar: A History of Europe Since 1945 (New York: Penguin, 2005), 668. 97. According to a 2016 poll by PEW Research Center, “Israel’s Religiously Divided Society,” http://​www.pewforum.org/​2016/​03/​08/​israels-​religiously-​divided-​society/​. 98. Dewey, Public and Its Problems, 227. 99. Dewey, Public and Its Problems, 233. 100. See PPD, 30. 101. What I have in mind here are not institutions that happen to be hierarchical, like schools of the military, but explicitly anti-​democratic infuences such as racist communities, sexist religious orders, etc. 102. Te efects of mass media on public opinion are extensively documented. For a recent study, see G. King, B. Schneer, and A. White, “How the News Media Activate Public Expression and Infuence National Agendas,” Science 358 (2017): 776–​80. For a specifc case study and summary of research, see Stefano Della Vigna and Ethan Kaplan, “Te Political Impact of Media Bias,” in Information and Public Choice, ed. Roumeen Islam (Te Hague: World Bank, 2008), 79–​106. 103.  See Hunt Allcott and Matthew Gentzkow, “Social Media and Fake News in the 2016 Election,” Journal of Economic Perspectives 31 (2017): 211–​36, 104. Umberto Eco, “Ur-​Fascism,” New York Review of Books, June 1995, https://​www.nybooks. com/​articles/​1995/​06/​22/​ur-​fascism/​. 105. Note that the freedom element of Cohen’s ideal deliberation (PPD, 23) does not rule out manipulation. Adding equality (I3) does not help. Te feature of ideal deliberation that can be taken to address the worry is aiming at “rationally motivated consensus” (I4), which is an element of autonomy according to Cohen (28). Te question I’m trying to investigate is what ensuring this involves.

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106. James Madison, Federalist No. 49. Tis is why he advocated not a democracy, but a republic in which political authority is delegated to “representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice.” Such enlightened representatives will “refne and enlarge the public views, by passing them through the medium of a chosen body of citizens.” 107. PPD, 35n39. 108. Allcott and Gentzkow, for instance, list “several reasons why social media platforms may be especially conducive to fake news” (“Social Media and Fake News,” 221). 109. Some platforms, among them Facebook, were intentionally designed to induce dopamine hits to increase interaction. Some are comparing the efects of some electronic instruments to drug addiction and gambling (see, for example, Adam Alter, Irresistible: Te Rise of Addictive Technology and the Business of Keeping Us Hooked (New York: Penguin, 2017); and Nir Eyal, Hooked: How to Build Habit Forming Products (New York: Penguin/​Portfolio, 2014). Social media’s ability to manipulate users’ emotional states has also been demonstrated (see Adam Kramer, Jamie Guillory, and Jefrey Hancock, “Experimental Evidence of Massive-​Scale Emotional Contagion Trough Social Networks,” Proceedings of the National Academy of Sciences 111 (2014): 8788–​90). 110.  Many other factors are obviously involved, such as information bubbles and feedback loops reinforced by confrmation bias (see Cass Sunstein, #Republic:  Divided Democracy in the Age of Social Media (Princeton, NJ:  Princeton University Press, 2017). Sunstein proposes some other regulatory means of addressing some of the challenges to democracy posed by social media, but they do not seems to answer the concerns raised here. Perhaps this is due to his focus on the consumer side, setting aside corporations’ monopolistic tendencies and manipulative behaviors (see p. 29). 111. Journalist Matt Yglesias recently conjectured that the only way to eliminate the spread of fake news through Facebook might be to shut down all publication of news on the social network. For data on fake news consumption, see Andrew Guess, Brendan Nyhan, and Jason Reifer, “Selective Exposure to Misinformation: Evidence from the Consumption of Fake News During the 2016 U.S. Presidential Campaign,” pdf. of study at https://​www.dartmouth.edu/​῀nyhan/​ fake-​news-​2016.pdf. 112. Archon Fung, ­chapter 1, this volume. 113. See PPD, 69. Te importance of civic education for democracy is a pervasive idea, salient in Aristotle, Rousseau, Tocqueville, Mill, and Dewey, to name the most prominent. For recent treatment, see Amy Gutmann, Democratic Education (Princeton, NJ: Princeton University Press, 1987); William Galston, “Civic Education in the Liberal State,” in Liberalism and the Moral Life, ed. Nancy Rosenblum (Cambridge, MA: Harvard University Press, 1989), 89–​102; and Stephen Macedo, Diversity and Distrust:  Civic Education in a Multicultural Democracy (Cambridge, MA: Harvard University Press, 2000). 114.  Jack Crittenden and Peter Levine, “Civic Education,” in Te Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Oxford: Oxford University Press, 2016). 115. George Akerlof and Robert J. Shiller, Phishing for Phools: Te Economics of Manipulation and Deception (Princeton, NJ: Princeton University Press, 2015), xii. 116. Akerlof and Shiller, Phishing for Phools, 9. 117.  As Fung notes, the norms he ofers will probably have to be sustained by regulatory institutions.

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118.  PPD, 268; and see Joshua Cohen, “Citizens United vs. Democracy,” https://​www.academia.edu/​26733141/​Citizens_​United_​v._​Democracy. 119. A typical realist objection is that “if we try to export these [deliberative] experiments to real-​world decision making, deliberative polls are ripe for abuse” (Brennan, Against Democracy, 66). As I have claimed, given the normative and ideal nature of their theory I don’t think deliberative democrats need to dispute this. 120. Joshua Cohen, “Taking People as Tey Are,” Philosophy & Public Afairs 30 (2001): 363–​86.

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Why should there not be a patient confdence in the ultimate justice of the people? Is there any better or equal hope in the world?  —​A braham Lincoln, First Inaugural address

3 Rousseau and the Meaning of Popular Sovereignty Stuart White

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3.1  INTRODUCTION Contemporary politics is characterized in many nations by a double anxiety.* On the one hand, there is a concern that politics has moved into an era of “post-​democracy” in which efective power has become unduly concentrated in the very rich and business corporations (Crouch 2004). Popular sovereignty, on this view, has become substantially weakened, displaced by oligarchy. On the other hand, there is a concern, crystallized for citizens of the UK and the US, respectively, by the words “Brexit” and “Trump,” that politics has become vulnerable to “populism,” to crass assertions of popular will that lack rationality and a sense of justice. On this view, the worry is not the loss of popular sovereignty but its eruption. When we move from diagnosis to proposed reform, this double anxiety can be the site of a tension. While the elitism concern supports a politics of popular empowerment (Gerbaudo 2017), the populism concern apparently pushes advocacy in the opposite direction. In my own state, the UK, the questioning of political structures is connected to a deep, ongoing constitutional crisis in which, at time of writing, both popular and elite-​level understandings of the political order have become confused in competing notions of parliamentary and popular sovereignty.1

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In this chapter, I consider what resources Rousseau’s political theory ofers in the face of this double anxiety. Rousseau’s theory is relevant because it suggests a conception of popular sovereignty that is at once “anti-​elitist” (speaking to the frst anxiety) and also “anti-​populist” (speaking to the second). Section 3.2 provides an initial sketch of Rousseau’s conception of the legitimate polity. My account stresses the distinction between government and sovereignty in Te Social Contract, the focus of sovereignty on the society’s basic constitutional order, and the role that Rousseau allows for checks and balances in the exercise of the sovereign’s power over the constitution. Section 3.3 then presents a conception of popular sovereignty that builds on Rousseau’s model of the legitimate polity (though without claiming that this conception is identical to Rousseau’s). Tis conception of popular sovereignty takes from Rousseau, frst, an emphasis on the link between popular sovereignty and the common good, a link that I argue requires a suitably deliberative sovereign. Second, it takes from Rousseau an emphasis on the continuing role of the people as a sovereign in relation to the constitution—​a suitably active popular sovereign. Section 3.4 clarifes further, and defends, the idea of an active popular sovereign, and indicates how this speaks to the elitism concern with which we began. Section 3.5 then further clarifes the deliberative aspect of popular sovereignty. It also discusses whether and how a deliberative popular sovereign can be institutionalized, thereby addressing the populism concern, while retaining the commitment to an active popular sovereign. Section 3.6 concludes the chapter.

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3.2  ROUSSEAU’S MODEL OF CONSTITUTIONAL DEMOCRACY Let’s start with a sketch of Rousseau’s theory of the legitimate polity (drawing primarily on Cohen 2010).2 Rousseau specifes the problem to be solved as that of how we can be free, in the sense of obeying our own will, while also being subject to the authority of the state (Cohen 2010, 24–​32; Rousseau 1994b, 1.6).3 He argues that freedom and authority are reconciled only in a polity where every citizen is subject to the “supreme direction” of the “general will” (Cohen 2010, 32–​59; Rousseau 1994b, 1.6). Summarizing at very high speed, the general will is “general” in three ways. It is, frst, general in terms of its source: it is a will deriving from the citizenry as a whole—​in the simplest, ideal case being declared by votes in an assembly of the whole citizenry, the “sovereign” (Rousseau 1994b, 1.6, 2.2, 3.18, 4.2). It comes fom all.4 It is, second, general in its application: it is embodied only in “laws” that apply equally to all (Rousseau 1994b, 2.6). Tird, it is general in its orientation; that is, it is a will directed to the common good of citizens (Cohen 2010, 62–​28; Rousseau 1994b,

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2.1, 2.3, 2.4).5 Tis common good consists, centrally, in the shared basic interests that citizens have in goods such as life, liberty, and economic opportunity (Cohen 2010, 42–​54; Rousseau 1994b, 1.8, 1.9, 2.5, 2.11).6 A community of the general will is, therefore, as a frst approximation, a political community in which citizens assemble to make their laws directly; in which these laws, as laws, apply equally to all; and in which these laws promote citizens’ shared interests in, centrally, life, liberty, and economic opportunity. Citizens are able to see the laws as promoting their own interests without either self-​abnegation (seeing one’s interests as fundamentally less worthy than those of others) or self-​infation (seeing one’s interests as fundamentally more worthy than those of others). Because citizens can identify with the laws in this way, they can support them; and because citizens make the laws in assembly, all citizens can actively declare their support for these laws. In the ideal scenario, therefore, each citizen can and does will the laws that he is required to obey, in a strong sense that involves (ultimately) agreeing with these laws;7 and so, obedience to the state is reconciled with freedom (understood as obedience to one’s own will). To maintain this freedom, the citizens’ public assembly is required to meet regularly (Rousseau 1994b, 3.18). To properly understand the kind of polity that Rousseau is proposing, we need to take note of some important distinctions and defnitions. First, as Richard Tuck has recently emphasized, Rousseau makes a key distinction between government and the sovereign (Rousseau 1994b, 3.1; Tuck 2016). Te sovereign has sole authority to make laws. Government then makes decisions, and enforces its decisions, on the basis of the laws that the sovereign has made. Te government is designed by the sovereign and its membership is chosen by the citizens’ public assembly—​though in choosing government ofcers the assembly itself acts in a governmental function rather than as the sovereign (Rousseau 1994b, 3.18). Tus, the government is at least roughly akin to what we would think of as representative government—​a government made up of individuals distinct from the people as a whole but chosen by and accountable to them. Second, it is helpful to refect on what Rousseau intends by “laws.” Some interpreters argue that what Rousseau has in mind is a relatively small set of basic rules of political and social association: “in Rousseau’s terminology laws are not the statutes and year-​by-​year changes in governmental regulations and stipulations, but rather very general and fundamental laws, close to what we would call the constituent principles of the political society” (Marini 1967, 459). Rousseauian “laws” are similar to what we would think of as constitutional laws. Tus, the sovereign is akin to a constitution-​making (and amending) assembly (see also Tuck 2016). Tird, if the sovereign is doing its job, it makes laws that promote the common good. As said, the common good centrally consists in citizens’ shared basic interests

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in life, liberty, and economic opportunity. In making laws to secure these interests, the sovereign will in efect have to defne a schedule of rights related to these interests. Tis will give individual citizens constitution-​like claims against the government (Cohen 2010, 83). Fourth, as Cohen points out, Rousseau’s theory allows for some “checks and balances” in the making of laws by the sovereign. Rousseau is explicit that in the case of some decisions, new legislation may appropriately require a supermajority in the citizens’ public assembly rather than a simple majority—​a form of entrenchment that provides a check on sudden, ill-​advised changes to basic laws (Cohen 2010, 137; Rousseau 1994b, 4.2). In addition, Cohen notes that in “Letters Written from the Mountain,” Rousseau accepts as legitimate the contemporary Genevan practice of reserving the right to propose legislation to a governmental body distinct from the larger citizen assembly/​sovereign (Cohen 2010, 172–​73; Rousseau 2001). Rousseau seems here to envisage a system in which government has responsibility for proposing legislation while the larger assembly has the sole right to enact legislation. As Cohen notes, one possible rationale for this arrangement is that it may serve to deepen deliberation about legislation so that laws are more likely to track the common good (Cohen 2010, 174–​75). Tus, some checks and balances are acceptable on Rousseau’s view if they help make decisions better track the common good, perhaps by prompting deeper deliberation about the common good and provided that they do not, in the process, fatally compromise the people’s capacity to make the laws they do come to want.8 Fifh, one aspect of this proposed system of checks and balances is worth emphasizing. Tis is the way regular meetings of the citizens’ public assembly, combined with an agenda that puts the form and personnel of government frst on the assembly’s agenda, is a vital check on efective usurpation of the sovereign’s legislative power by the government. As Helena Rosenblatt shows, this concern was central to the Genevan politics in which Rousseau was involved (Rosenblatt 1997). Te people must retain their ability to author the laws—​the constitution—​and not have this crucial power taken from them by the governmental apparatus and its members. Taking these various points together, Rousseau’s proposed polity looks something like the following. Government makes policy, but has to do so within a framework of basic, constitution-​like laws made by the sovereign, which may include a statement of individual rights; and since the sovereign is the assembled people, government is therefore constrained to act within a constitutional framework laid down by the people. Trough their sovereign power, the people give themselves constitutional rights against their government. At the same time, they can’t just rip up the constitution as and when they like; they have to take proposals through a system of checks and balances to efect changes in the “laws”/​constitution. Government itself

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remains accountable to the people at all times through the citizens’ public assembly, and regular review of the form and personnel of government works against a possible usurpation of the assembly’s/​people’s legislative power (see also Bertram 2004, 159; Tuck 2016).9

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3.3  POPULAR SOVEREIGNTY: DELIBERATIVE AND ACTIVE What does Rousseau’s model of a legitimate polity suggest about the nature of popular sovereignty? My focus in this section is in part interpretative with respect to Rousseau, but more fundamentally I am interested in what we can develop from or out of Rousseau’s account.10 First, it is perhaps worth emphasizing how in Rousseau’s model popular sovereignty is focused at the constitutional level. As presented in section 1, the model is one in which the citizens’ assembly has sole power to make the laws, while government makes policy within the framework of these laws. If we accept that “laws” here correspond roughly to what we would think of as constitutional laws, Rousseau’s discussion suggests something close to what Bruce Ackerman calls a “dualist” democracy. “We the People” have responsibility for the polity’s basic constitutional order, while politicians in government, accountable to the people, make ordinary law and policy within the framework of the constitutional order (Ackerman 1991). Within this dualist model of the polity, Rousseau’s model suggests a conception of popular sovereignty at the constitutional level that is at once deliberative and active. Let’s take each of these in turn. A key feature of Rousseau’s account is that popular sovereignty is inherently connected to the common good. Tis is captured in the very notion of the general will as a will that both comes from all citizens and is oriented to the interests they have in common (De Dijn 2015, 9–​10). Popular sovereignty, therefore, is not based merely on an aggregation of individual preferences—​a “will of everyone” (Rousseau 1994b, 2.3). It is properly exercised only as a moralized will that has as its goal the common good, understood as centrally referring to the shared basic interests of citizens. Te exercise of popular sovereignty therefore must involve a kind of judgment by individual citizens of what best promotes the common good. Judgment, in turn, implies some kind of deliberation, a consideration and weighing of reasons, related to the common good, as the basis for judgment. Tere is some debate about how far Rousseau intends this deliberation and judgment on the part of individual citizens to be informed and shaped by a robust practice of public discussion. According to Cohen, Rousseau has a concern about public debate generating factionalism and so leading people away from the general will (Cohen 2010, 75–​77). Nevertheless,

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Cohen argues, the balance of textual evidence indicates that Rousseau does envisage rights of public discussion both within and outside the citizens’ assembly (Cohen 2010, 139, 170–​72). Whatever Rousseau’s view, however, I think we should understand popular sovereignty as properly deliberative in a public sense, where “deliberation” is linked to the search for the community’s common good. Te reasons for this include epistemic considerations (discussion can lead to more informed and hence better decisions) and also considerations related to mutual respect between citizens (ofering reasons can be an important way of expressing the idea that we do not see other citizens as, so to speak, wills simply to be crushed in the political process).11 I turn next to the active character of popular sovereignty. Periodic meetings of the citizens’ public assembly, in its role as sovereign, mean that the people are regularly called back to the status of taking direct and authoritative control over, and hence responsibility for, their society’s fundamental laws—​albeit potentially subject to some checks and balances of the kind sketched earlier. In this respect, Rousseau’s model envisages what we may term an active popular sovereign (see also Tuck 2016, 248–​250). To assist discussion here, I will try to refne the notion of an active popular sovereign. When a citizen occupies the status of sharing equally with other citizens a direct power and responsibility for determining constitutional laws, let’s say the citizen occupies a constitutional authority status. When a citizen stands back from existing constitutional laws and asks, from frst principles, including principles of justice, what these laws ought to look like, the citizen adopts what we may term the constitutional authority perspective. Tis perspective is appropriate to the constitutional authority status, but citizens can adopt this perspective at any time, and need to do so from time to time to consider whether it is appropriate to occupy, if they can, the constitutional authority status. A polity has an active popular sovereign, in the specifc sense intended here, to the extent that: (a) Citizens have the capacity and willingness to adopt regularly the constitutional authority perspective; (b) Citizens have efective institutional opportunity within the political system to occupy the constitutional authority status should they judge this appropriate; and (c) In the course of their political life, citizens do occupy this status with reasonable frequency. In this defnition, (a) and (b) capture what I am most interested in at the normative level. In principle, (a) and (b) could be satisfed even if (c) is not. In this case, citizens would be adopting the constitutional authority perspective, but deciding that

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since all is well (or at least as well as they think it can be), they need not actually use their efective institutional opportunity to occupy the constitutional authority status. Tis is analogous to Rousseau’s citizens deciding there is no need for them to meet in their sovereign public assembly, as there is nothing they see the need to vote on. Te tentative reason for including (c) in the defnition is the speculative, but plausible thought that the capacity and willingness to adopt the constitutional authority perspective is a kind of skill that is maintained through practice. In Rousseau’s model, of course, there is a rule that the citizens’ public assembly must meet every so ofen. One possible reason for this is that it might encourage citizens to maintain the practice of thinking as “legislators,” reinforcing this aspect of their civic identity and capacity so that it is there for them to draw on when necessary. Indeed, according to Cohen, something like this idea is actually Rousseau’s best argument for institutionalizing the sovereign as an assembly of the whole citizenry rather than through a representative assembly.12 Te focus here on an active popular sovereign might seem at loggerheads with Richard Tuck’s recent analysis of Rousseau’s place in modern democratic theory as suggestive of a “sleeping sovereign” (Tuck 2016). In part at least the diference is rhetorical. Tuck is surely right that a Rousseau-​like popular sovereign is not supposed to be in more or less continual session the way a modern representative legislature is for the bulk of the year; relative to this benchmark, the popular sovereign at the constitutional level certainly isn’t “active.” On the other hand, as Tuck himself is keen to emphasize, a Rousseau-​style popular sovereign is envisaged as having the capacity to re-​emerge periodically rather than doing its constitution-​making job and then dissolving. In this sense, I think it is reasonable to speak of an active popular sovereign.13 3.4  ANTI-​E LITISM? AN ACTIVE POPULAR SOVEREIGN To recap, what we should take from Rousseau’s model of the legitimate polity (sketched in section 1) is a conception of popular sovereignty as properly deliberative and active (section 2). In this section, I focus on the active character of popular sovereignty and explore why it ought to have this active character. 3.4.1  Te Protective Argument Recall that one of Rousseau’s concerns, grounded in his Genevan context, is the risk that the government will usurp the proper law-​making role of the sovereign. To help prevent this, the citizens’ assembly meets regularly and independently of the will of the government. At every meeting, it has the power to reconsider the

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personnel of the government and how the government is institutionally structured. Te frst power corresponds roughly to the modern democratic practice of holding regular elections to legislatures and key executive positions. Te second corresponds roughly to the people’s retaining power to revisit the rules of the political system itself and change them, independent of the will of the government. Tis power of independent constitutional review, concerning the rules of the political system, serves a protective function—​that of helping to keep government sensitive to the preferences and interests of the people rather than becoming self-​serving or serving of a particular subgroup. Although aimed at his contemporary Geneva, Rousseau’s protective argument has a resonance today. Tere is a signifcant concern in the United States and elsewhere that the institutions of “normal politics”—​for example, regular elections to legislatures—​are unduly infuenced by the power of “money in politics” (Cohen 2009a). If politicians need money to run election campaigns with hope of success, and if this comes from a small, unrepresentative section of the population (the wealthy), then politicians will likely become attuned to the interests of this group in a way that is contrary to the common good. Insofar as this problem is in the structure of normal politics, moreover, it will be difcult for this very reason to tackle it through normal politics:  elected representatives won’t take action to reduce the infuence of money because they are under this infuence (Lessig 2015). However, imagine that the general public is able to address the question directly, circumventing the usual system of representation, by virtue of its ongoing power to assume constitution-​making authority. Provided the institutional channel by which this power works is itself relatively free of monied infuence, there will then be a way to address the problem at the level of normal politics. Te assembly plays such a role in Rousseau’s polity, and we will consider a way of institutionalizing it for contemporary polities in section 4. Tis is the protective argument for institutionalizing an active popular sovereign: that doing so can help to protect the people from elite capture/​usurpation of the political system (by keeping alive the constitution-​making power of the people to amend structures through which capture/​usurpation has been achieved). 3.4.2  Te Imaginative Freedom Argument Te protective argument pinpoints one way in which the institution of an active popular sovereign can serve the value of political autonomy: the capacity of the people for self-​rule. But there are perhaps other ways in which this might be said to protect and promote political autonomy. For example, one element of political autonomy is what we may term imaginative feedom. A citizen has imaginative freedom when

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she views the basic political and social order of her society as a collective creation and is able and willing to consider alternative orders as creative possibilities. Tere is not necessarily a failure of imaginative freedom if a citizen looks at her society’s basic structure and concludes that all is well. But it is crucial that the citizen sees it as a matter for her independent judgment to make this call, and that in making such a judgment, she is willing and able to think about alternatives that might improve on existing institutions. A great obstacle to imaginative freedom is what Roberto Unger calls “false necessity”: mistaken notions that the social world simply has to be a certain way, notions that close down our thinking about possible alternatives (Unger 1987). Now, institutions that help citizens acquire the capacity and willingness to adopt the constitutional authority perspective can thereby help build citizens’ imaginative freedom. Te institution of an active popular sovereign is thus arguably supportive of imaginative freedom as an element of political autonomy.14

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3.4.3  Te Inclusive Responsibility Argument A further consideration favoring active popular sovereignty is related to what we may call inclusive responsibility. Imagine a question about the constitution of a political system—​for example, about how England should be governed in the context of further devolution of power from the UK Parliament to the Scottish Parliament and Welsh and Northern Irish legislative assemblies. Imagine now someone who says of this question: “Why not just leave this question to elected representatives? We, citizens, do our bit by voting for representatives. It is then their job to make the decisions, not ours.” In my view, this expresses too much of a displacing of responsibility onto others. I  am inclined to respond as follows:  “We all share a responsibility to make our society a just and fourishing one. While it is reasonable to delegate many policy decisions to elected representatives, as part of our social division of labor, when it comes to the fundamentals of our political and social order—​ centrally, the constitution—​our responsibility to help secure a just and fourishing society requires more of us: that we ourselves participate directly in making the relevant decisions.” Authorization of our most basic laws, including those that defne the political system, should come directly from “We the people” because this is the appropriate way for each of us to take and express responsibility for the fundamentals of our society. It captures one important sense in which this is “our society.” Tis idea is, in one sense, classically “Rousseauian”: we express our status as citizens responsible for the fundamental structure of our society only by bringing our own wills directly to bear in the relevant authoritative decision-​making.

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If we accept this understanding of inclusive responsibility, then it seems that we need to fnd ways to institutionalize an active popular sovereign. To express the value of inclusive responsibility, citizens need to develop and retain their capacity and willingness to adopt the constituent authority perspective, and they need to have adequate institutional opportunity to take up what I have termed the constituent authority status. 3.4.4  Te Civic Equality Argument

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Te arguments just given all connect, at least implicitly, to notions of equality, as well as of autonomy and responsibility. Here I draw out explicitly one way in which the institution of an active popular sovereign is connected to civic equality. I do this by considering how civic inequality might be connected within a political culture to the absence of active popular sovereignty (and vice versa). Consider, in this light, Tom Nairn’s suggestive analysis of English political culture (Nairn 1977). According to Nairn, English political culture has been shaped by the absence of a revolution since the seventeenth century. Potentially revolutionary classes, both bourgeois and proletarian, have been assimilated into the English/​ UK’s existing political system. Tey did not overthrow it. As a result, Nairn argues, England lacks a strong sense of “the people,” of “an always-​latent conviction of popular will and capacity” (Nairn 1977, 295). Consequently, he claims: Te dominant Gestalt of political England is patrician, not popular:  it perceives a grateful People, allowed to advance afer making the proper representations. . . . [H]‌er [England’s] Totem became the contrary of populism. Not the self-​action of the Volk, but the inexhaustible wisdom of Institutions and their custodians; not a belief that the People can do anything, in the last resort, but the conviction that popular aspirations will always, in the end, be attended to up there. . . . Let the fair case be put: a team of decent chaps up there will do the possible. (Nairn 1977, 296–​97) Whether or not Nairn is right about the actual England, it is enough for present purposes to imagine a hypothetical polity for which this characterization holds. Tis would be a polity in which most citizens do not see themselves as equal co-​creators of their society’s basic rules and institutions. Primary responsibility for making change at this level lies with the “team of decent chaps up there.” Te lack of a sense of popular sovereignty thus goes along with deference and, in this respect, civic inequality. Te institutionalization of an active popular sovereign, involving us all in taking up the constitutional authority perspective and status, can be expected to push back

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against such attitudes and thereby promote civic equality, at least if equality of rights (and responsibilities) is explicitly built into the way the active popular sovereign is institutionalized.15

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3.5  ANTI-​P OPULISM? A DELIBERATIVE POPULAR SOVEREIGN Te active quality of the popular sovereign suggested by Rousseau’s analysis has a strong anti-​elitist quality. It implies a citizenry the members of which are able and willing to assemble, independently of the government, to address their constitutional order, if need be confronting the power that elites may have tried to amass within the existing constitutional order. Rousseau’s model does not only suggest an active popular sovereign, however, but also one that is oriented to the common good (De Dijn 2015). Tis calls, I have argued, for the grounding of popular sovereignty in practices and institutions that encourage individuals, through public discussion, to articulate and to be responsive to considerations of the common good. However, is it possible to institutionalize deliberativeness in the context of an active popular sovereign? If our aim is merely to establish an active sovereign, then the kind of citizens’ initiative power we see in some states of the United States and elsewhere might suffce. Te basic procedure is that if citizens can reach a threshold of signatures on a petition, then the proposal contained in the petition—​for example, for a constitutional amendment—​goes on the ballot and passes if it achieves a majority (and perhaps also meets threshold conditions in terms of getting the support of a specifed proportion of voters). Te initiative power gives citizens the opportunity to bring themselves into a constitutional authority status; and this very possibility may encourage citizens to look more at politics from a constitutional authority perspective. We might then see periodic eforts at constitutional reform and, over a stretch of time, actual reforms coming out of this process.16 Te initiative power potentially addresses the concerns that we have discussed about possible elite capture of the political process. In Rousseau’s terms, it ofers a way for the people to bring themselves, as the sovereign, into session, independently of the will of the government. Tus, if there are persistent problems within the structure of representative government that can’t be addressed through this structure precisely because of these problems—​such as is arguably the case with “money in politics” in the United States at present—​the initiative power may ofer a way to get to grips with them (assuming the initiative power itself can be designed to limit the infuence of money).

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Tere are clear dangers with the initiative power, however. Tere is a concern that initiative and referendum mechanisms jeopardize minority rights, producing a populist “tyranny of the majority” (Bell 1978; Smith 2009, 116–​19). A related criticism is that the initiative process is insufciently deliberative. As Derrick A. Bell Jr. puts it:

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Te emotionally charged atmosphere ofen surrounding referenda and initiatives can easily reduce the care with which the voters consider the matters before them. . . . Appeals to prejudice, oversimplifcation of the issues, and exploitation of legitimate concerns by promising simplistic solutions to complex problems ofen characterize referendum and initiative campaigns. (18–​19)17 Many commentators on the recent referendum in the UK on EU membership would strongly agree with this assessment. Going back to Rousseau, the problem is that the citizen initiative mechanism doesn’t seem to have the institutional devices to prompt deeper deliberation that his theory allows for—​arguably requires—​so as to help connect the exercise of popular sovereignty to the common good. Te popular sovereign might get active through the citizen initiative power, but there is a clear danger that it will not be sufciently deliberative in its activism. Tere is a connection here to a concern that the popular sovereign, in its capacity as a “constituent power,” might be frighteningly arbitrary, overly fuid, a “quicksand” on which to build anything (Kalyvas 2005, 232, quoting Arendt 1963, 163). Tese concerns do not necessarily require us to give up altogether on the citizens’ initiative power, however. Instead, we can think about how to build more deliberativeness into the citizens’ initiative power, thereby institutionalizing a popular sovereign that is both active and deliberative. We are not short of proposals. For example, when a constitutional question is put to a referendum, we can require that on highly signifcant issues authoritative decisions require not one but at least two afrmative direct popular votes (with a reasonable pause between the votes). Tis can help ensure that major constitutional changes do refect a settled popular will, rather than a temporary shif of opinion. Tere is opportunity for voters to have second thoughts in light of further discussion and debate. We can require that voters be given multiple options rather than a simple binary choice.18 In the case of initiatives in particular, it is also very important to limit or rule out payment of individuals for the work of gathering petition signatures so as to get a proposal onto the ballot. Tis seems essential to help prevent the initiative mechanism from itself becoming caught up in a “money in politics” dynamic (Lacey forthcoming). Another possibility is suggested by the growing use of “minipublics” in the democratic process (Fung 2003). Specifcally, let’s defne a Citizens’ Assembly (CA) as a body of citizens who are selected from the general population on a random basis,

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but in a “stratifed” way so as to create an assembly that is descriptively representative in terms of selected characteristics such as, for example, gender, race, age, region, and socioeconomic class. CAs of roughly this kind have recently been used to derive proposals for electoral reform in the Canadian provinces of British Columbia and Ontario (Lang 2007; LeDuc 2011; Grant 2014). A modifed version was used in 2013/​14 by the Republic of Ireland to discuss possible amendments to the Republic’s constitution (Farrell 2014; Suteu 2015). In the United States, Sanford Levinson and Lawrence Lessig have proposed that a federal Constitutional Convention to address inequality in the political system should take this form (Levinson 2006, 167–​180; Lessig 2015). A modest use of random selection was also a feature of Iceland’s recent constitutional reform process (Landemore 2015). Following the examples in British Columbia and Ontario, CAs move through a structured, facilitated process of discussion: an initial learning phase in which assembly members are familiarized with facts and arguments relevant to the topic they are addressing and with the rules of discussion within the assembly itself; a phase in which the assembly members take testimony and evidence from interested parties; and fnally a deliberation phase in which the assembly identifes and votes on proposals. Te evidence base to date suggests that well-​resourced and well-​organized CAs generate quality deliberation and proposals (Lang 2007; Smith 2009). One further way to address the deliberativeness concern with the citizens’ initiative power, then, is to integrate CAs of this kind into the initiative process. For example, under what we may term the “PAR” scheme, citizens retain the right to initiate petitions in favor of a preferred constitutional amendment (petition). But if the relevant thresholds are satisfed the amendment does not go straight on the ballot. Instead it requires the setting up of a CA (assembly). Te CA then looks at the proposed amendment and it decides what, if anything, goes forward to a popular ballot (referendum). John Ferejohn has argued for a scheme of this kind as a way of improving the state-​level citizen initiative power in the US context (Ferejohn 2008). Independently, Christopher Zurn has argued for a similar scheme as a way of approaching constitutional amendments at the federal level in the United States (Zurn 2007).19 John Gastil and Robert Richards have also discussed a variety of ways in which micro-​publics might add deliberative depth into a citizen initiative process—​for example, as in Oregon, by helping to produce independent information leafets about proposals on the ballot (Gastil and Richards 2013). Te basic PAR model can of course be varied in diferent ways, notably in terms of how we specify the relevant thresholds for success at the petition and referendum stages. We can also vary how the assembly stage works (e.g., Zurn requires that a proposed amendment be accepted by three CAs in succession before going to a referendum).20

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Of course, one should not expect too much of any specifc institutional mechanism. Tere are important questions, such as about the structure and nature of the media and the associational context of democratic politics that are important to democracy’s deliberative quality that I have not addressed here.21 Specifc institutional schemes, such as PAR, may not be suitable in all circumstances.22 Nevertheless, the deliberation-​promoting mechanisms discussed here indicate one approach that has some promise for helping to institutionalize a popular sovereign at once active and deliberative. Consider, for example, how the recent “Brexit” referendum in the UK might have gone diferently had it been called under the PAR scheme. Tere might well have been a referendum on EU membership, and it might still have led to a decision that the UK exit the EU. But if a Citizens’ Assembly had agreed to hold a referendum, then its internal deliberative process, less vulnerable to short-​term party political calculation, might have led to more careful consideration than the Cameron government gave to the structure of the referendum. In particular, in the course of its deliberation the CA might have acknowledged the inherent ambiguity of the “leave” option and accordingly proposed to structure the referendum to test support across diferent forms of “leave” relative to “remain.” Whatever the outcome, it would then have had more claim to represent a clear and settled popular will.

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3.6  CONCLUSION We began our discussion by noting a double anxiety in contemporary democratic politics:  that popular sovereignty, displaced by oligarchic power, needs to be reasserted, not least at the constitutional level; and that popular sovereignty, energized by unreasonable, non-​or anti-​deliberative attitudes, is a threat to rational and just policymaking and must be contained, not least at the constitutional level. I have argued, in response, that we may fnd a way of addressing this double anxiety by exploring Rousseau’s conception of popular sovereignty as presented in Te Social Contract and related works. Drawing on Rousseau’s model of the legitimate polity, I have presented a conception of popular sovereignty as at once both active and ongoing at the constitutional level but also deliberative with regard to the common good. In these respects, the view can be seen as simultaneously addressing both the contemporary anxiety about elite capture of the democratic process and populist eruption. Moreover, I have suggested that there are practical ways of promoting a popular sovereign at the constitutional level that has the qualities of being both active and deliberative. In this way, and without treating Rousseau’s model of the legitimate polity as a blueprint, we can draw from it in thinking constructively about trying to address the double anxiety with which we began.

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Notes * Many thanks to participants in the conference “Ideas that matter: a conference in honor of the work and teaching of Joshua Cohen,” Stanford University, January 20–​21 2017, especially Emilee Chapman and Tomer Perry, for comments on an earlier draf of this paper, and to the editors of this volume for their detailed comments. I am also grateful to Paul Flather and to students in the Jindal Global University Winter “PPE” program for helpful comments on a related presentation. I add my particular thanks to Joshua Cohen for his intellectual and all-​round inspiration. 1.  Te traditional understanding is that the UK constitution is based on the sovereignty of the crown-​in-​parliament, an institution consisting of monarch, House of Lords, and House of Commons, only one of which, the Commons, has a democratic franchise (and even that is something that Parliament could revise at will). However, since the 1970s, a practice has emerged of holding referendums on questions deemed to be of major constitutional signifcance. In this way, the idea that the fundamental constitutional order is properly authorized by “We the People,” the principle of popular sovereignty, has also entered into the UK’s constitutional self-​understanding. Te tension between the two is illustrated by the outcome of the 2016  “Brexit” referendum. Following the referendum, some opponents of the UK’s leaving the European Union argued that Parliament should assert its sovereignty and overrule the popular vote. But many members of the political elite, including many who oppose Brexit, believe that this would be illegitimate because the referendum expresses a popular will that in their view should have priority over Parliament’s will. At the same time, however, there is in my view a tendency to fall back on the idea of parliamentary sovereignty as the default rule and an unwillingness to consider what it would mean in a comprehensive sense for the UK to become a constitutional order founded on the principle of popular sovereignty. For a discussion of the idea of a constitutional convention in the UK context that draws on the thinking set out in this chapter, see White 2017. 2. See also Kateb 1961; Marini 1967; Nabulsi 1999, 177–​240; Bertram 2004; De Dijn 2015; Tuck 2016. My basic interpretation of Rousseau was developed independently of Tuck 2016, but shares an emphasis on the distinction between sovereign and government and in locating an ongoing popular sovereignty at the constitutional level. 3. References to Rousseau’s Social Contract here are to the book and chapter, e.g., a reference to book 4, ­chapter 2, is noted as 4.2. 4. Cohen argues that the direct voting on laws by the citizens’ public assembly is not an essential feature of Rousseau’s view. Rousseau was willing to consider alternatives in specifc contexts—​ e.g., a system involving mandated elected representatives in Poland. See Cohen 2010, 136. 5. Tis aspect is stressed by Annelien De Dijn in her argument that Rousseau’s theory of the general will represents a response to the problem of the “tyranny of the majority”; see De Dijn 2015,  9–​10. 6. As Rousseau puts it in the Discourse on Political Economy: “Seek out the motives by which men . . . have been led to unite themselves . . . in civil societies: the only one you will fnd is to guarantee each member’s property, life, and liberty, by putting them under the protection of all” (Rousseau 1994a, 10). 7.  Tis does not mean that there is no disagreement at the point when laws are voted on. However, Rousseau argues that the judgment of the majority in a contested vote is evidence of what is genuinely promotive of the common good and that initial dissenters should and will bring their judgments into line with the majority for this reason. See Rousseau 1994b, 4.2;

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Cohen 2010, 79–​82. (For the reasons Cohen gives, Rousseau’s argument is not successful. Te goal of reconciling freedom and authority, on the terms Rousseau sets out, is almost certainly too ambitious.) 8.  John P.  McCormick has argued that in 4.4 of Te Social Contract, Rousseau endorses the Roman Republic’s system of legislative voting, which gives greater infuence to the rich. See McCormick 2007. Introducing weighted-​class voting into the citizens’ public assembly, so as to favor the rich, might also be seen as a check Rousseau supports—​albeit of a kind that I  would not wish to endorse. Responding to McCormick’s argument, Chiara Destri argues that Rousseau does not in fact have a general preference for oligarchy: he endorses the Roman model for specifcally Roman conditions and not for contemporary polities; see Destri 2015. However, even if McCormick were correct in claiming that Rousseau has a general preference for oligarchy in the design of core legislative institutions, my concern here is less with Rousseau’s own position than with what we might take from Rousseau’s discussion. It could be that on this issue, as with Rousseau’s exclusion of women from political rights, we should depart from Rousseau—​in a sense, we side with the egalitarian potential in his works against his own frustration of this potential. 9. Christopher Bertram (2004) writes: “Rousseau’s preferred form of government . . . suggests an intriguing closeness to modern representative government. To be sure, Rousseau is famous for rejecting the representation of sovereignty, but if lawmaking is confned to constitutional essentials and much of the detail of day to day government is a matter of decrees issued by a group of elected ofcials, the diference between the two models is appreciably diminished.” 10. One important issue or set of issues that I bracket in this chapter concerns the membership of the “people” who are the subject of popular sovereignty. Rousseau’s conception of the people is gendered and I assume, with Cohen, that it is possible to disconnect Rousseau’s underlying approach from this exclusionary feature (Cohen 2010, 6). I also think that any defensible conception of the “people” must rest on shared civic and political status and not on ethnicity or race (Preuss 1993). Tis does not preclude a shared national identity as a support for popular sovereignty. But it demands a “civic nationalism” or “constitutional patriotism” or “republican patriotism” in which the sense of national purpose is centrally connected to egalitarian citizenship, to egalitarianism in admission to the status of citizenship, and to political processes that support such egalitarianism (Habermas 1990; Nabulsi 1999, 177–​240, 2006; White 2003). 11. Tese comments obviously only sketch some supporting considerations in favor of deliberation. For a fuller defense of the value of deliberation, see Cohen 2009a. On the deliberative aspect of popular sovereignty, see also Habermas 1988. I also set aside here some important criticisms of “deliberation” that I think have force: see Young 2002, Allen 2006. 12. According to Cohen, Rousseau is on weak ground when he suggests that sovereignty cannot be represented as such, but on stronger ground in suggesting that a representative system risks an erosion of citizens’ own capacity and willingness to take up the legislative role, which implies an erosion of popular sovereignty itself (see Cohen 2010, 146–​52). 13. Indeed, the language of the “sleeping sovereign” may distract from the important normative point, discussed further, that citizens should remain engaged with the questions of whether they ought to reassemble as a constitutional sovereign and, if so, what they ought to do in this capacity. Also, when Tuck summarizes the Rousseau-​derived view as holding that the constitutional sovereign “might put in only feeting appearances and be largely forgotten during the political activity of a community” (Tuck 2016, 460), I think he is taking the rhetoric of dormancy too far.

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14. For a discussion of the role of imagination in the French radical republican tradition, and its indebtedness in this respect to Rousseau, see Hazereesingh (in press). 15. A polity could have an active popular sovereign but nevertheless retain the idea that while everyone properly gets some share in constitution-​making power, this is not an equal share. In this case, the active popular sovereign is unlikely to contribute as much as suggested to civic equality. I am grateful to Annabelle Lever for raising this point. 16. Tuck 2016, 258–​77, 363–​66, 463–​64, discusses the connection between Rousseau’s conception of popular sovereignty and the development of proposals for constitutional referendums and plebiscites in revolutionary France and the United States. In his discussion of how to institutionalize a “strong democracy,” Benjamin Barber advocates creating a national initiative-​referendum device, though not necessarily limited to constitutional questions (Barber 2003, 281–​89). 17. See also Zurn 2007, 324, 340; and Gastil and Richards 2013, 254. 18.  Tis and the foregoing proposal are suggested in Barber 2003, 281–​89. For insightful discussion of deliberativeness in the context of referendums, see also Tierney 2012 and Lacey (forthcoming). 19. My own approach to the idea was stimulated by hearing a presentation by Graham Smith on how the EU’s recently introduced and rather inconsequential citizen initiative mechanism might be improved by linking successful initiatives to the setting up of CAs. Smith has subsequently generalized the idea in Smith 2015. 20. Amar 1988, 1064–​1065n79, 1066, 1011, also argues that a constitutional amendment process must make use of deliberative assemblies, though he does not specify assemblies on the model of CAs. 21. On media and deliberation, see Hind 2012. On the importance of the associational context, see Cohen and Rogers 1994, and O’Neill and White (2018). 22. Alan Renwick points out that resting constitutional design on a CA might not be appropriate in highly divided societies, such as Northern Ireland, where stable settlements require agreements between political leaders who are trusted by their respective communities (Renwick 2014, 101). It has also been suggested to me that it is not feasible to achieve meaningful statistical representation of the population through a CA in states that are very large and diverse (e.g., at the national level in India).

References Ackerman, B. (1991). We the People, Volume 1:  Foundations. Cambridge, MA:  Harvard University Press. Allen, D. S. (2006). Talking to Strangers:  Anxieties of Citizenship Since Brown vs. Board of Education. Chicago: University of Chicago Press. Amar, A. R. (1988). “Philadelphia Revisited:  Amending the Constitution Outside Article V.” University of Chicago Law Review 55 (4): 1043–​104. Arendt, H. (1963). On Revolution. Harmondsworth: Penguin. Barber, B. R. (2003 [1984]). Strong Democracy: Participatory Politics for a New Age. Berkeley and Los Angeles, CA: University of California Press. Bell Jr., D. A. (1978). “Te Referendum:  Democracy’s Barrier to Racial Equality.” Washington Law Review 54 (1): 1–​29.

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Bertram, C. (2004) Rousseau and the Social Contract. London, Routledge. Cohen, J.  (2009a). “Deliberation and Democratic Legitimacy.” In J.  Philosophy, Politics, Democracy, 16–​37. Cambridge, MA: Harvard University Press. Cohen, J. (2009b). “Money, Politics, Political Equality.” In Philosophy, Politics, Democracy, 268–​ 302. Cambridge, MA: Harvard University Press. Cohen, J. (2010). Rousseau: A Free Community of Equals. Oxford: Oxford University Press. Cohen, J., and J. Rogers (1994). Associations and Democracy. London: Verso. Crouch, C. (2004). Post-​Democracy. Cambridge, Polity. De Dijn, A. (2015). “Rousseau and Republicanism.” Political Teory. doi:  10.1177/​ 0090591715609101. Destri, C. (2015). “Rousseau’s (Not So) Oligarchic Republicanism: Refections on McCormick’s Rousseau’s Rome and the Repudiation of Populist Republicanism.” Critical Review of International Social and Political Philosophy. doi:10.1080/​13698230.2015.1078075. Farrell, D. M. (2014). “Te 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?” In 75 Years of the Constitution of Ireland: An Irish-​Italian Dialogue, edited by G. F. Ferrari and J. O’Dowd, 292–​305. Dublin: Clarus. Ferejohn, J. (2008). “Conclusion:  Te Citizens’ Assembly Model.” In Designing Deliberative Democracy: Te British Columbia Citizens’ Assembly, edited by M. E. Warren and H. Pearse, 192–​213. Cambridge: Cambridge University Press. Fung, A. (2003). “Recipes for Public Spheres:  Eight Institutional Design Choices and Teir Consequences.” Journal of Political Philosophy 11: 338–​67. Gastil, J., and R. Richards (2013). “Making Democracy Deliberative Trough Random Assemblies.” Politics and Society 41: 253–​81. Gerbaudo, P. (2017). Te Mask and the Flag:  Populism, Citizenism and Global Protest. London: Hurst. Grant, J. (2014). “Canada’s Republican Invention? On the Political Teory and Practice of Citizens’ Assemblies.” Political Studies 62: 539–​55. Habermas, J. (1988). “Popular Sovereignty as Procedure.” In Between Facts and Norms, 779–​822. Cambridge: Polity (e-​book edition). Habermas, J. (1990). “Citizenship and National Identity.” In Between Facts and Norms, 823–​60. Cambridge: Polity (e-​book edition). Habermas, J. (1996). Between Facts and Norms. Cambridge: Polity (e-​book edition). Hazereesingh, S. (in press). “Te Utopian Imagination: Radical Republican Traditions in France from the Enlightenment to the French Communists.” In Radical Republicanism: Reclaiming the Tradition’s Popular Heritage, edited by B. Leipold, K. Nabulsi, and S. White. Oxford: Oxford University Press. Hind, D. (2012). Te Return of the Public:  Democracy, Power, and the Case for Media Reform. London: Verso. Kalyvas, A. (2005). “Popular Sovereignty, Democracy, and Constituent Power.” Constellations 12 (2): 223–​43. Kateb, G. (1961). “Aspects of Rousseau’s Political Tought.” Political Science Quarterly 76: 519–​43. Lacey, J. (forthcoming). “Te Deliberative Case for Standard Direct Democracy.” Paper presented at conference, “Democratic Teory Beyond Deliberation: New Approaches to Representative Democracy,” Department of Politics and International Relations, Oxford University, June 22–​23  2017.

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Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

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Landemore, H. (2015). “Inclusive Constitution-​Making:  the Icelandic Experiment.” Journal of Political Philosophy 23: 166–​91. Lang, A. (2007). “But Is It for Real? Te British Columbia Citizens’ Assembly as a Model of State-​Sponsored Citizen Empowerment.” Politics and Society 35: 35–​69. LeDuc, L. (2011). “Electoral Reform and Direct Democracy in Canada: When Citizens Become Involved.” West European Politics 34: 551–​67. Lessig, L. (2015). Republic, Lost: Version 2.0: How Money Corrupts Congress—​and a Plan to Stop It. New York: Twelve. Levinson, S. (2006). Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). Oxford: Oxford University Press. Marini, F. (1967). “Popular Sovereignty but Representative Government: Te Other Rousseau.” Midwest Journal of Political Science 11 (4): 451–​70. McCormick, J. P. (2007). “Rousseau’s Rome and the Repudiation of Populist Republicanism.” Critical Review of International Social and Political Philosophy 10 (1): 3–​27. Nabulsi, K. (1999). Traditions of War. Oxford: Oxford University Press. Nabulski, K. (2006). “Patriotism and Internationalism in the ‘Oath of Allegiance’ to Young Europe.” European Journal of Political Teory 5 (1): 61–​70. Nairn, T. (1977). “Te English Enigma.” In Te Break-​Up of Britain, 291–​305. London: Verso. O’Neill, M., and White, S. “Trade Unions and Political Equality.” In Philosophical Foundations of Labour Law, edited by H. Collins, G. Lester, and V. Mantouvalou, 252–​68. Oxford: Oxford University Press. Preuss, U. (1993). “Constitutional Powermaking for the New Polity:  Te Relations Between Constituent Power and the Constitution.” Cardozo Law Review 14: 639–​60. Renwick, A. (2014). Afer the Referendum:  Options for a Constitutional Convention. London: Constitution Society. http://​www.consoc.org.uk/​wp-​content/​uploads/​2014/​05/​J1847_​ Constitution_​Society_​Report_​Cover_​WEB.pdf. Rosenblatt, H. (1997). Rousseau and Geneva: From the First Discourse to the Social Contract, 1749–​ 1762. Cambridge: Cambridge University Press. Rousseau, J. J. (1994a [1755]). Political Economy. In Te Social Contract, translated by C. Betts, 1–​41. Oxford: Oxford University Press. Rousseau, J. J. (1994b [1762]). Te Social Contract, translated by C. Betts. Oxford:  Oxford University Press. Rousseau, J. J. (2001 [1764]). “Letters Written from the Mountain.” In Letter to Beaumont, Letters Written fom the Mountain, and Related Writings, Te Collected Works of Rousseau, Volume 9, translated and edited by C. Kelly and E. Grace, 158–​331. London and Hanover, NH: University Press of New England. Smith, G. (2009). Democratic Innovations:  Designing Institutions for Citizen Participation. Cambridge: Cambridge University Press. Smith, G.  (2015). “Citizens Should Have the Power to Call Constitutional Conventions.” OpenDemocracy, January 9, https://​www.opendemocracy.net/​ourkingdom/​graham-​smith/​ citizens-​should-​have-​power-​to-​call-​constitutional-​conventions. Suteu, S. (2015). “Constitutional Conventions in the Digital Era:  Lessons from Iceland and Ireland.” Boston College International and Comparative Law Review 38 (4): 251–​76. https://​ lawdigitalcommons.bc.edu/​iclr/​vol38/​iss2/​4.

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Tierney, S. (2012). Constitutional Referendums: Te Teory and Practice of Republican Deliberation. Oxford: Oxford University Press. Tuck, R. (2016). Te Sleeping Sovereign:  Te Invention of Modern Democracy. Cambridge: Cambridge University Press (e-​book edition). Young, I. M. (2002). Inclusion and Democracy. Oxford: Oxford University Press. White, S. (2003). “Republicanism, Patriotism, and Global Justice.” In Forms of Justice: Critical Perspectives on David Miller’s Political Philosophy, edited by D. A. Bell and A. de Shalit, 251–​68. Oxford: Rowman and Littlefeld. White, S. (2017). “Parliaments, Constitutional Conventions, and Popular Sovereignty.” British Journal of Politics and International Relations. doi: 10.1177/​1369148117700657. Unger, R. M. (1987). False Necessity:  Anti-​Necessitarian Social Teory in the Service of Radical Democracy. London: Verso. Zurn, C. (2007). Deliberative Democracy and the Institutions of Judicial Review. Cambridge: Cambridge University Press.

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PART TWO Confronting Injustice

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4 Without the Loving Strains of Commitment Christopher J. Lebron

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i The strains of commitment is a main idea that secures the stability of a just society in John Rawls’s A Teory of Justice. It is hard to overstate the importance of this idea, for it attempts to answer a basic question that any normative theory must confront: What will ensure that persons abide by the moral demands imposed on them by the theory’s stipulations? Rawls’s response to that question notably relies on the proposition that rational persons will not betray agreements they make under reasonable conditions. Tis response is susceptible to pressure: people ofen have a change of mind, if not heart, about their commitments if these turn out to be costly, inconvenient, or burdensome. Tat is, when it’s time to do as one has committed, the bite of obligation may cut sharper than any possible remorse for reneging. In trying to make clear the complexity of our moral lives and the grounds for our moral reasoning, the kind of objections that concern me, and with which I am deeply sympathetic, mobilize facts that are central to the human condition: regret, bias, poor critical judgment. In other words, people as they are may not be as dependable as we need them to be for the fulfllment of a just society. But the human condition leaves us with other overlooked or underutilized tools that can help stabilize something like Rawls’s strains of commitment. Specifcally, I have in mind the idea of love. My position in this chapter is more pointed, however, than claiming that love is important for social justice. Tough I in fact endorse that view, my motivation is to see if there is a way to get traction on a particular kind of deeply embedded, persistent, and systematic injustice: racial injustice. Racial inequality (which for the 91

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purposes of this chapter I will use interchangeably with “racial injustice,” as I mean “inequality” in a deeply humanistic sense) is an especially pernicious form of injustice measured by both its historical staying power and its real toll on black lives. And, interestingly enough, there is a relevant supposed turning point in the history of race in America that makes worthwhile thinking through something like honoring the strains of commitment with Rawls in mind. Te passage of the Civil Rights Act of 1964 was not the same thing as persons entering Rawls’s original position—​his stipulation of a bargaining situation under conditions of extreme epistemic withholding; nonetheless, blacks fnd themselves facing the same question: once an agreement is made, how can we get persons to live with what is thereafer required? It is in the spirit of this parallel that I sketch a preliminary account of the possible ethical role of love for racial justice. To wit, I aim to show that love as ethical resource is important not only as a source of moral motivation but also as a source of commitment stabilization. Given our presently tragic and ofen rancorous discourses around race, especially since the murder of Trayvon Martin in 2012 and the rise of Black Lives Matter, my reliance on love may be surprising. It may be additionally surprising that in making my argument, I pair Rawls with James Baldwin, one of America’s most celebrated twentieth-​ century essayists and social commentators on race and democracy. Baldwin is seldom turned to as a systematic philosopher, but he had a clear and complex theoretical view of the relationship between love and democracy in the context of a history of white supremacy. Tis makes Baldwin even more compelling because, despite his deep hatred for America’s racial problems, for Baldwin almost nothing in redeeming an unjust democracy and sustaining a just one can happen without love. In fact, his allegiance to an important place for love in our moral and political lives, despite circumstances that would reasonably underwrite anger and the disowning of one’s fellow American, will prove for us to be crucially instructive. In this chapter, I rely on Baldwin’s approach to philia in particular and urge that it ought to be seen as a potent resource for achieving a stable, lasting justice. In my concluding section, I  marshal Joshua Cohen’s refection in his deeply important “Te Arc of the Moral Universe” to bring into view the relationship between the good society, the role of historical injustices in leading to their own elimination, and democratic agency, and their role in bending the arc toward us, here and now.

4.1  THE PROBLEM OF STABILITY REVISITED Published in 1971, A Teory of Justice has, as the fagship Rawlsian project, enjoyed decades of support from the feld of political philosophy, as well as deeply critical

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challenges. Rawls rigorously pursued a question fundamental to all social-​contract theory: How can we get persons with competing interests in the context of limited resources to cooperate in articulating and sustaining a just society? Since societies comprise persons we are to view and treat as free and equal, it follows that societies are morally bound to put in place the background conditions that respect persons as free and equal. Importantly, those background conditions are not merely an injunction that fows from our status as free and equal. More than that, they are instrumental in our capacity to see ourselves as free and equal, and a primary way we do that is by forming a plan of life in accordance with our (reasonable) preferences. And since we each are entitled to do this, it follows, we all do this alongside others. Tus the conditions must be such that moral resources—​that is, the Rawlsian social bases of self-​respect—​are given to all equally, while material resources are distributed to limit the detrimental efects of being the least well-​of person. But there is another implication of a society of free and equal persons that sits at the core of Rawls’s work that is more proximately important for what follows. Free and equal persons are not conceived as merely being benefciaries of a well-​ordered society. Te legitimacy of this society is grounded in its workings and institutions being given ethical shape by the agreement(s) reached by those who live under those institutions. Tis squarely places Rawls’s book in the tradition of social contract: our agreement to the principles regulating society also means that we are now collectively responsible for the character of our society, for upholding the terms of that agreement. Our collective responsibility, however, is tied to a separate notion in Rawls—​a sense of justice. Rawls assumes that we all have some idea of justice that is capable of informing our character and how we dispose ourselves to what justice requires. Te sense of justice is important because our each having a sense of justice does not mean we each have the same conception of justice; rather, we each think justice is important and worth striving toward, and recognizing the distinct aims of others modifes our view of how we attain justice (e.g., not by top-​down command) and what its ends ought to be (ends all reasonable and rational people can agree to). Once the proper, overlapping conception is set out and its principles are articulated, our sense of justice implies “we ordinarily have some desire to act in accord with these pronouncements and expect a similar desire on the part of others.”1 Te feature of a sense of justice I think is important, whether or not Rawls makes a lot of it, is that the sense of justice is persistently essential to a good society. Tis point is critical, as I shall demonstrate. Rawls seems to perceive the fundamental importance a sense of justice has for his theory when he writes: “A conception of justice characterizes our moral sensibility when the everyday judgments we do make are in accordance with its principles. . . . We do not understand our sense of justice until we know in some systematic

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way covering a wide range of cases what these principles are.”2 In other words, our sense of justice efectively depends on the relationship between the vision of justice to which we agree and the everyday ways in which we act. If this relationship is misaligned or corrupt, then no principles of justice can sufce on their own to efectuate a just society. So, then, it turns out that although Rawls’s theory is ostensibly one for settling upon the arrangement of major social, economic, and political institutions, the subjects of social contract theory are not done when the principles are agreed upon. In fact, their hard work is just beginning, as there is an important connection between their disposition to act as justice requires and the goodness of that society. As members of a just society, we need to anticipate ways we can fail to contribute to justice and ways we might get ourselves to be more reliable. Here, in a crucial passage, Rawls further writes: “a theory of justice . . . is a theory of the moral sentiments setting out the principles governing our moral powers, or, more specifcally, our sense of justice.”3 And this feature of his argument—​that moral sentiments are needed to sustain a sense of justice—​opens the door for Baldwin. A prominent ambition in A Teory of Justice is Rawls’s desire to formulate a theory that provides its own support over time. So, while his theory is primarily focused on institutional design, there is no getting around the notion that people are responsible for reproducing a society’s ethical culture. Clearly, principles that mandate institutional designs alone won’t do; the way that institutions work depends on what people do. Te case of racial inequality will help sharpen the problem that Rawlsian and other theories of justice face. As I noted, Rawls’s signature attempt to secure stability consists in his articulation of “the strains of commitment.” Te idea stipulates that if you were rational, reasonable, and sincere when you made an agreement, neither a change in attitude nor a change in taste can release you from the relevant commitments. Being able to endure the strains of commitment—​to comply, even when it can be hard to do so—​is what allows us to maintain and perpetuate a good society characterized by justice. Now, it might be objected that by bringing in racial injustice, I am outside the parameters for Rawls’s theory. Afer all, that theory is a work of ideal theory—​thus, an extended formulation of terms, hypotheticals, ideal propositions, and principles that are derived in the context of assuming full compliance by individuals. Contrast that with not only American society in general but also the abjectly terrible conditions of racial inequality, and it can seem I am trying to have two very diferent conversations at once. But this conclusion is too quick, for two reasons. First, if we appropriately handle what is entailed by Baldwin’s insights on Americans’ moral attitudes regarding race then we might potentially gain resources that can deepen aspects of ideal Rawlsian theory such as the project of

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theorizing stability. Tis would be useful, but this not my main aim. Second, and mainly, the engagement with Rawls helps provide keen insight into the problem of stability. Ideally or nonideally, societies need to maintain a sense of their ethical priorities, and societies ofen settle these in the forms of laws. Laws are examples of supposedly enduring commitments to an ethical principle or goal, and laws passed in a democratic society governed by representative institutions are both conduits of the will of the people and checks on the actions of the people. Now, one might still observe injustices, even if there were just laws, but the case of race is especially problematic. Why? With the deep material inequality between whites and blacks and the lopsidedness of the justice system, in addition to what strikes so many of us as the routine elimination of black bodies by the police, there is very little sense that Americans—​ particularly white Americans and the institutions that privilege them—​are reliably operating under any strains of commitment. From a certain point of view, it doesn’t just seem that there is a bit of looseness in how the principles of justice are practiced. To put it plainly, when it comes to black bodies, lives, and livelihoods, it ofen is the case that the principles are forgotten, if not outright trampled upon. But let us now recall that Rawls says we each have a sense of justice and that this sense is a capacity rather than a skill that is already fully formed. And let us also recall that he says a theory of justice relies on the moral sentiments. Might there be a way to redeem this radical disjuncture between the law/​principles and the actions of both institutions and persons toward blacks? In particular, is there a moral sentiment that could help support our sense of justice under the strains of commitment? 4.2  THE IMPORTANCE OF RACIAL LOVE 4.2.1  On Why Loving White Americans Matters James Baldwin was one of America’s leading essayists in the middle of the twentieth century, especially on the problem of racism. His work conveyed a distinctive degree of depth because of Baldwin’s own acute powers of bearing witness to America’s vices and racial sins, and he had abundant frsthand experience with racial hypocrisy and disrespect. From everyday denigration by white Americans to being harassed by the police, Baldwin knew the specter of racism because it had touched him with chilling frequency. Despite the horrors which he both witnessed and experienced, Baldwin was consistently committed to a humanism that reclaimed, even for those who despised and mistreated black Americans, a view of shared civil life rooted in compassion. However, Baldwin was also distinctly aware of the obstacles to making a more compassionate civil existence a modus operandi.

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Baldwin says:

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Te unexamined life is not worth living. Te despair among the loveless is that they must narcoticize themselves before they can touch any human being at all. Tey, then, fatally touch the wrong person, not merely because they have gone blind, or have lost their sense of touch, but because they no longer have any way of knowing that a loveless touch is a violation.”4 I read Baldwin’s passage as portraying a kind of democratic sensuality. For him, American democracy is a way of arranging public lives that invites sharing, investigation, afection, and mutual vulnerability. Further, a well-​ordered democracy is not only or merely concerned with justice; rather, it additionally—​maybe even primarily—​seeks to enhance the idea of civic intimacy, the idea that persons are not merely deliberating beings but also the kinds of beings who desire and require acceptance, sympathy, and care. Te primary crime in America, for Baldwin, is that our shared history of white supremacy has rendered blacks untouchable to whites. But something else has also happened: it has rendered whites themselves unable to appreciate the depth of their own humanity, has numbed them to the promise of intimacy. Tis is what makes them loveless, on Baldwin’s view. Te cycle becomes tragic wherein the historically oppressed are the victims of those who are self-​victimizing. And this makes us wonder how the cycle can be broken. An important piece of this puzzle is found in Baldwin’s letter to his nephew, “My Dungeon Shook,” which serves as the preface to Te Fire Next Time. Baldwin’s letter begins with a stark and instructional warning. Baldwin long lamented what he might describe as the wretchedness of his father’s life, and it was wretched in a very tragic sense. As Baldwin writes regarding his father: “Well, he is dead, he never saw you, and he had a terrible life; he was defeated long before he died because at the bottom of his heart, he really believed what white people said about him.”5 One way to read Baldwin here is that he is making a psychological argument familiar to anyone who has read Du Bois, with his concern that the internalization by blacks of white America’s perception of blacks is a sure road to self-​erosion. But another, closely related way to read Baldwin here is as posing a fundamental ethical criticism of the following sort:  once we cede the ground of self-​esteem and self-​worth, we cannot hold back the pressures and vagaries of contempt and belittlement directed toward us, thus blacks give up the only thing we ever truly possess—​our humanity; and giving that up is a violation of the self. Blacks’ loss of humanity on account of racism is for Baldwin the ultimate defeat. Which is why Baldwin instructs his nephew as follows: “Tere is no reason for you to try

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to become like white people and there is no basis whatever for their impertinent assumption that they must accept you.”6 Foundational to this problem is that white Americans possess narrative capabilities that have real efects. Tey are able to tell and express a story about black Americans that is assumed to be the defnitive story. Of course, relying on ideas like deviance, criminality, licentiousness, and laziness, it’s not an afrming story—​afer all, Baldwin’s father died from believing what white people said about him. Now, depending on your own disposition, you might think the natural reaction to the efects and practice of this imbalance of power is resentment. But Baldwin’s counsel to his nephew is quite the opposite: “Te really terrible thing, old buddy, is that you must accept them. And I mean that very seriously. You must accept them with love. For these innocent people have no other hope.”7 Why does Baldwin counsel us to love whites rather than dismiss them or forgive them, for example? Te answer is straightforward enough: love is part of what is required in a just democracy Te important difculty here is that justice ofen requires sacrifce, even as our everyday lives introduce biased lapses of judgment and lazy attitudes that run counter to abiding by what justice requires of us. Which is why abiding by justice involves what Rawls calls a strain of commitment. But since our capacity to abide by what justice mandates depends on the moral sentiments, I have been supposing there is a moral sentiment that is crucially helpful in sustaining the strain of afrming and supporting a just society. I am claiming that one such sentiment is love and that Baldwin gives us an important clue as to how this is the case. In Baldwin’s counseling his nephew to love rather than resent, and by identifying whites as “innocents,” we can begin to work out why love is imagined to be essential to racial justice. I have argued elsewhere that Baldwin’s brand of love is consistent with what the ancient Greeks call philia love.8 As compared to eros on the one hand, or agape on the other, philia is the love we show kin. Te kind of love we show kin is in some senses the most demanding and enduring. It presumes equality of shared concerns, and it presupposes the ability to demand recognition. It helps us perceive others as accountable, thus makes holding them accountable—​and this is really crucial—​as part of loving them rather than accusing them for the sake of retribution. When we are our brother’s and sister’s keeper, we hold two things close to ourselves: the right to demand and the obligation to give. When what is our right to demand is betrayed, we respect our betrayer by supposing he or she is capable of responding to moral demands; when we act as we are obligated, we respect that person as a legitimate source of claims; when we fail to act as we are obligated, we make ourselves susceptible to being held accountable.

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Baldwin’s commitment to philia, then, is grounded in a very democratic ethos: a disposition that reaches for the egalitarian sensibility of equal and mutual concern, voice, and shared habits. Consider that, in a 1965 debate with William F. Buckley, Baldwin makes this unexpected claim:  “We talk about integration in America as though it were some great new conundrum. Te problem in America is that we’ve been integrated a very long time. Put me next to any African and you will see what I mean.”9 Baldwin asserts this in the context of laying claim to his fellow Americans by saying that when he sees his countrymen overseas, only he and the other American truly understand each other, sharing the same sociopolitical shorthand. Tis is an important claim, for it politically encloses Baldwin with white Americans, despite the power imbalances of which Baldwin was all too aware. Baldwin’s stance afrms the idea that once concerns are voiced between democratic co-​participants, even when the relationship is marked by injustice, it is incumbent upon each of us to consider those concerns while being ready to respond. I should say at this point that the argument here is not that any voiced concern is one that obligates others—​surely some concerns are trivial or even repugnant. Te argument, rather, is thematic in identifying the kind of status we should hold in each other’s eyes—​the status of political, democratic kin. So, if philia hinges in part on holding each other accountable, why, then, does Baldwin refer to whites as “innocents”? Tis descriptor can sit uncomfortably as a way of letting white Americans of the hook on account of the way they victimize themselves. But this is the opposite of what Baldwin intends. When Baldwin refers to white Americans as innocents, he uses that term in the way we speak about small children: whites might be innocent because they do not know enough about the world to fully appreciate their culpability for the injustices that others sufer yet from which they beneft. Yet, not being in the best position to appreciate one’s culpability is not the same as absolution, for as Baldwin also says to his nephew: “But it is not permissible that the authors of devastation should also be innocent. It is the innocence which constitutes the crime.”10 And this statement in many ways encapsulates one very important aspect of the role of love in justice for Baldwin. It is to hold our culpable kin to account without mere accusation; to demand without berating. In doing so, one brings white Americans into the proper relationship with how racial history, racial identity, and privilege converge on black lives to impose disadvantage and, ofen, sufering. In coming into a right relationship with this convergence, Baldwin, I think, supposes whites are better positioned to hold up their end of the democratic deal for the long term, to endure their strains of commitment, for it is certain that as Baldwin sees it, they are in no position to do so now.

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4.2.2  On Why Black Americans Need to Love Temselves

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Perhaps we were, all of us—​pimps, whores, racketeers, church members, and children—​bound together by the nature of our oppression, the specifc and peculiar complex of risks we had to run; if so, within these limits we sometimes achieved with each other a freedom that was close to love.11 Baldwin spent a brief span of his mid-​teenage years in the pulpit of the church attending to blacks’ spirituality. His initiating encounter was at Mount Calvary of the Pentecostal Faith with Bishop Rosa Artemis Horn, who asked, at that frst meeting: “Whose little boy are you?” Baldwin’s biographer, David Leeming, notes, “Baldwin was struck later by the fact that exactly that same question had been asked him by ‘pimps and racketeers’ who wanted him to ‘hang out’ with them.”12 Baldwin wondered whether the church wasn’t just one more hustle in an environment built on a harmful falseness to our own capacities to sympathy. Tus: “I really mean that there was no love in the church. It was a mask for hatred and self-​hatred and despair.”13 For Baldwin, the place of safe congregation propagated a complex of beliefs, perceptions, and attitudes that were antithetical to the very idea of salvation. In a stirring passage from his autobiographical novel, Go Tell It On the Mountain, Baldwin describes the transformation of congregants in a black church as they worshiped in jubilation: “Something happened to their faces and their voices, the rhythm of their bodies and to the air they breathed. . . . His father’s face, always awful, became more awful now; his father’s daily anger was transformed into prophetic wrath.”14 Tat Baldwin situates these concerns within the framework of religious worship is not entirely to the point. Baldwin’s deeper concern was that the church was a conduit for something already endemic to black life: the powerful inducements to self-​negation and despair imposed by white supremacy. One of the roles of love for Baldwin, then, in addition to assisting in white Americans’ ethical recalibration, has to do with the love blacks can direct toward themselves. Black self-​love works on the souls of black folks such that they can maintain two important stances: militant resistance against disrespect and marginalization alongside a largeness of heart to do the tough work of helping cultivate democratic intimacy and sensuality in our society. Baldwin, however, realized that the fow of afect and rationality between militancy and intimacy is delicate and fraught with pitfalls that could corrupt our better sensibilities. Tis point cannot be underestimated in the context of thinking about pursuing a just society under the strains of commitment. Te aim of seeking racial justice is to undo current regimes of marginalization and oppression while instituting new habits and modes of social cognition to put into place a social

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scheme in which blacks are properly valued. One main difculty, as I have put it, is that white Americans seem poorly positioned to deal with what racial justice will necessarily ask of them. I have suggested, following Baldwin, that blacks’ love for whites can help adjust whites’ frame of critical thinking to support that abiding by justice, even under the strains of commitment. But that isn’t the whole story. Te source of love for others begins with the ability to love ourselves. We project the sincerity of this moral sentiment successfully insofar as we hold that moral sentiment with regard to our own fourishing and standing as persons owed respect. Tere are two places where Baldwin explicitly and powerfully grapples with the difculties of self-​love. “Notes of a Native Son” represents an attempt by Baldwin to make peace with his father’s legacy without having to pay the price of inheriting a destructive patrimony. As apparent in his address to his nephew, Baldwin clearly believed that distinct from the awfulness of white supremacy and racial inequality, his father had committed a crime against himself in internalizing the awfulness. Tis preoccupation Baldwin had with his father’s defeat wasn’t a matter of arguing an abstract principle. Rather, that defeat haunted him because Baldwin felt and knew that he could not aford to presume he was free from his father’s patrimony. Te source of that defeat is bitterness, and it is placed in blacks when they realize the nature of the society they inhabit and the struggles that society will impose upon them without any guarantee that those struggles can be overcome. Here is a poignant example of the way in which Baldwin was haunted: “I had discovered the weight of the white people in the world. I saw that this had been for my ancestors and now would be for me an awful thing to live with and that the bitterness which had helped to kill my father could also kill me.”15 Te language of mortality here is essential. Baldwin’s father had died while sufering a very sharp mental decline. Yes, there were medical reasons for the death of his father’s body, but the causes of the death of his soul lay squarely in the realm of the social and personal: because he believed what white people said about him, he was defeated before he had died. Te acceptance of the denigrating beliefs of racism had caused a great bitterness that Baldwin was determined to reject as his patrimony. But just as Baldwin was sure the bitterness could be passed from parent to child, it could also be passed between other black folks who held each other in esteem. Consider the case of Richard Wright. Wright was one of the most important novelists in the middle of the twentieth century and certainly one of the most visible black novelists. Te book that most swifly comes to the average reader’s mind upon hearing Wright’s name is Native Son—​and the average American’s quickness to identify that book as an important black novel was a real problem for Baldwin. In that book, Wright was concerned to tell the story of a black youth whose depredations on account of his race compelled him to a ft of rage; in this ft of rage, he commits murder

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and rape. Wright’s own intent was to tell a story so searing no white person could turn away from it. He hoped to burn into the souls of his readers the efects of the crimes of white supremacy, to warn them of the rage that was brewing in black Americans. Te complication, for Baldwin, was twofold. White readers missed Wright’s intent, and rather than reading the book as an invitation to self-​refection, they tended to fetishize the story of a black boy named Bigger Tomas who commits murder and rape out of rage. And there was another thing—​blacks were reading the book, too, and they were reading it as part of the tradition of protest literature. Tis would not do for Baldwin, on two counts. First, he rejected the protest novel as a helpful genre. He writes: “But unless one’s ideal of society is a race of neatly analyzed, hard-​working ciphers, one can hardly claim for the protest novels the lofy purpose they claim for themselves or share the present optimism concerning them. Tey emerge for what they are: a mirror of our confusion, dishonesty, panic, trapped and immobilized in the sunlit prison of the American dream.”16 Te reference to the mirror here is deeply important. A  mirror shows us only what we show it—​no more, no less. And we only see what’s in a mirror when we look at it. Tis means mirrors are instruments of convenient observation rather than tough refection. Moreover, our acceptance of the surface-​level image is an act of self-​deception as to the substance of the image beneath the image. So, when the protest novel merely mirrors back to us our confusion, dishonesty, and panic, we may see it, honor it, and even acknowledge it, but all of that ought to be just preliminary to the tough work of ethical refection and political action. Te ofense, then, is that the protest novel was, on Baldwin’s view, taken as the end in itself—​its expressions of afect and complaint were considered righteous and complete, rather than a starting point or wedge for social change. Further, and this was Baldwin’s second concern, protest novels lef those of us who embraced them in a poor position to conceive of ourselves as efective thinking and feeling agents. Consider Baldwin’s specifc complaint against Wright’s work:  “For Bigger’s tragedy is not that he is cold or black or hungry . . . but that he has accepted a theology that denies him life, that he admits the possibility of his being sub-​human and feels constrained, therefore, to battle for his humanity according to those brutal criteria bequeathed him at his birth. But our humanity is our burden, our life; we need not battle for it; we need only do what is infnitely more difcult—​that is, accept it.”17

4.3  LOVE AND SOCIAL JUSTICE Tough on the one hand we may be compelled by Rawls’s desire to afrm the importance of the idea of stability in a theory of justice, while on the other hand we

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may accept Baldwin’s account for the centrality of love in racial justice, we may yet resist the conjoining of their two sets of arguments. It may not be possible to provide a fully convincing and large argument pairing the ambitions of two of America’s greatest thinkers, at least not in a space as constrained as this. Yet, I think we can do more to draw out good philosophical reasons for embracing this union of some of Rawls’s and Baldwin’s deepest insights. To begin, we might think that one value of love is that it completes an account of persons as ethical beings, as well as undergirding our sense of a life lived to fulfllment, even if imperfectly. Consider those two roles for love. First, rather than being merely an emotion hitched to romance and its attendant pursuits, love structures notions of obligations and commitment. Second, rather than being a base motivation for gratifcation, love helps us fgure out what a good life looks like to each of us. In this regard, love is to my mind not dissimilar from other ethically relevant sentiments. Having noted those roles for love, I turn to another pair of thinkers to further my project of connecting love with justice. Harry Frankfurt writes:  “Loving someone or something essentially means or consists in, among other things, taking its interests as reasons for acting to serve those interests. . . . It creates the reasons by which [one’s] acts of loving concern and devotion are inspired.”18 Te reason-​generating feature of love is essential for my argument. On this view, love’s ethical texture for a person is defned by how what matters to someone else provides a source of (ethical) motivation for that person. Love functions as a kind of bridge between persons, binding someone else’s good to another’s sense of what he or she ought to do, how to do it, and why. At this point, an immediate and, to some extent, understandable objection arises. Tis bridge, as I’ve described things, is a sensible ethical construct between persons disposed favorably to one another. Even casting aside romantic or erotic love, someone might object that Frankfurt’s account is a best ft for persons who are close in some afectively and relationally relevant way. Afer all, taking a stranger or distant acquaintance’s good as determinative for our ethical deliberations is a big ask. If that is the case, then love seems a risky if not straightaway poor ft for social justice. As clear as that objection is, there is an equally clear response that emanates from both Frankfurt and Baldwin. Two points from Frankfurt set the ethical stage, while revisiting a point in Baldwin sets the democratic stage. Frankfurt claims, frst, that love is disinterested, that “For the lover, the condition of his beloved is important for itself, apart from any bearing it might have on other matters.”19 Second, and crucially, Frankfurt asserts that while love can involve feelings of attraction or a desire for intimacy, these are not essential to love’s ethical picture, in fact: “Nor is it essential that a person like what he loves. He may even fnd it distasteful. . . . Loving something has less to do with what a person believes, or with how he feels, than with

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a confguration of the will that consists in a practical concern for what is good for the beloved.”20 Taken together, Frankfurt asserts love as an ethical ideal dependent on recognizing what is good for others; further, the ideal is sufciently compelling to preempt concerns over instances that involve people who in fact are not only not attracted to each other (in any relevant sense) but also fail to hold any warm feelings whatsoever. Here, it is important to recall Baldwin’s pragmatic view of democratic ties. He writes that while overseas, only he and another white American truly know each other and that Baldwin is bound to that person. Why? Tey share a “shorthand,” they share a history that, no matter its horrors, is predicated on the co-​experience of the American democratic project, as well as the aspiration to see that project reach its highest principles. What has gone wrong, on Baldwin’s view, is that whites have misunderstood their relationship to blacks, that they in fact are similarly closely bound to them and that their own ambition to make American democracy great depends on their racial redemption, which is the role blacks’ love is meant to play: it facilitates that redemption. Perhaps another objection now begins to form. Maybe it’s true that love has these properties as an ethical ideal, but it nonetheless lacks a proper motivational power, especially when it calls upon us to act for the good of those we dislike. Now, I think that fne-​grained questions of motivation are typically unanswerable. People fnd all kinds of ways to justify not doing what they ought; bias can run so deep as to undo an appropriately reasonable and stable connection with appropriate afective states or prevent the identifcation of one’s afective states as themselves irrational. Questions of motivation under conditions of bias and the like ultimately depend on our accepting the proposition that most people tend to want to live lives marked by some minimal sort of integrity and that that desire itself supports the initial inquiries into motivation. Tere, at least, is where I  choose to locate my starting place, and I believe it to be sufcient. If so, then how do we begin to think about the move from recognizing love as an ethical ideal relevant and essential to racial justice to that of its completing our own sense of a life fulflled? Return to Frankfurt. He writes:  “[the necessities of a person’s will] set the boundaries of his practical life; and thus they fx his shape as an active being. Any anxiety or uneasiness that he comes to feel on account of recognizing what he is constrained to love goes to the heart, then, of his attitude toward his own character as a person. Tat sort of disturbance is symptomatic of a lack of confdence in what he himself is.”21 In other words, a resistance to accept an object of love as an appropriate object says more about our relationship with our will and ethical disposition than it does about the object of love. In her important work, Susan Mendus helps develop this point further. She argues that Rawls was correct, despite his later rejection

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of his own point, that the disposition to act justly is congruent with an agent’s good. To establish this conclusion, Mendus draws on an analogy with love: love is also congruent with a person’s good, despite the demands it makes on us to sometimes put our self-​interest to the side. Mendus’s arguments against those who reject this congruence are complex and not entirely germane to my project here. Focusing on why she engages them, however, pays dividends. Mendus is similarly interested in the problem of stability in Rawls, and in securing compliance under the strains of commitment. She writes: “in order to solve the problem of stability, we must show that people who live in a well-​ ordered society have reasons for cultivating and acting upon their sense of justice. Tose reasons, however, must be ones which display justice as consistent with congruence between a person’s self-​interest and what morality demands, for if they do not, then stability is jeopardized.”22 Mendus reads Rawls as holding a position wherein the “sufering or even ruin” of doing what justice requires is endurable because doing as justice requires is congruent with our own conception of a life well lived.23 Tis position seems to cut against Rawls’s Kantian resistance to articulating a moral theory that maps out a comprehensive good, rather than an appropriate procedure that itself leads to morally acceptable outcomes in support of social justice. Mendus disagrees and thinks the analogy to love shows how the problem of congruence can be addressed for Rawls. Love, like justice, requires a balance between the gratifcation we seek from loving relationships and the duties our relationships impose on us: respect, consideration, moments of altruism, and so on. It is indeed odd to think that in genuine instances of love, one perceives oneself a loser when one is making a sacrifce—​indeed, it is the structure of the relationship that stipulates that sacrifce be seen as a part of what it means to love. And thus it is with justice: it is a part of being a participant in a good society that itself calls upon us to be ready to put aside pure self-​interest in order that the good society be supported. Mendus puts it more sharply when she argues that resisting this position only makes sense if we take short-​time slice views of a person’s life.24 Of course, in those instances, one has only that portion of life to look at; suddenly, sacrifce seems irrational. But extend the vision of one’s refections over a longer period of time—​say, over a time that one will participate in a society that must be stabilized—​and the relationship between self-​interest and morality begins to reconcile itself. Tus Mendus concludes: “Te malleability of an agent’s good is implicit in the recognition that some decisions themselves serve to alter our understanding of what constitutes our good, and it follows from this that appeal to the agent’s good need not be a simple choice between existing desires and objective interest.”25 While the inconveniences, even the pains, that attend love can be costly, the urgent and at times unsettling point is that love’s demandingness makes both

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redemption and ruin possible simultaneously. But this is also why love on its own is not depended upon by myself or any of the authors here as signifcant for love. Rather, love expands our moral capacities where our sense of owing others was before limited. On the view I am sketching here in support of Baldwin, love is required for racial justice. Leaning on Frankfurt, I claim that a person who is uneasy with the thought that justice requires extending love to others in a democracy is displaying an anxiety that says a great deal about the lack confdence that person has in what he or she is. To put the point more crisply, a person who bristles at the idea that racial justice requires loving others lacks confdence in his or her ability to be not merely racially tolerant but also anti-​racist, as well as lacks confdence in being the kind of person that sees democracy as more than just a stage for one’s own good, that it is for the good of all those who are afected by that which happens in a democratic society.

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4.4  HOPE, OR, HOW TO BEND THE ARC OF THE MORAL UNIVERSE MORE SHARPLY A remarkable feature of the history of black thought is the power of the idea that the problem with America is not democracy but, rather, its practitioners and the institutions that those practitioners put into place. Despite the undeniable fact that American democracy and its social, political, and economic institutions have been shot through with racism, black social and moral theorists have yet to be disposed to commend the idea of American democracy, even as its reality has been racially scandalous, even murderous. A common refrain in one strand of black thought has been that if the forces of decency could take the day, then democracy could work as it is meant, with winners and losers in policy but not in the chances for fourishing and peaceably existing. For these thinkers—​of which Baldwin was clearly one—​the idea of democratic procedure and the ideals that underwrite those procedures are one source of hope. However, those ideals require constant reafrmation in the minds of Americans. Tis reafrmation, when forthcoming, helps support the strains of commitment in seeking social justice. How so? Rawls says the strains of commitment involve the desire to act in accord with what justice requires and the expectation that others do likewise. Among the challenges that face the strains of commitment is the question of motivation, or put it a bit more precisely, the question of what kinds of steady and readily available moral considerations are in place to kindle the desire to act in accord with what justice requires or to move to hold others to account when they fail to do as reasonably expected. I suggest that society, as an ongoing scheme

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(if not yet one easily characterized by cooperation), contains within its structure, even when unjust, the ethical resources to support the kind of hope a position like Baldwin requires in his injunction to love others, even those who beneft from one’s marginalization. Te proposition fnds an excellent source of philosophical support in Joshua Cohen’s “Te Arc of the Moral Universe.” In that essay, Cohen sets before himself a question that, when answered with care, provides important insights for understanding how morally grotesque states of afairs come to be resolved and swept from society. Here is the question: Can the moral wrongness of an injustice itself be part of the explanation for its being overcome or dissolved? Cohen writes: “I think that some ethical explanations . . . have force. Tat force derives from the general claim that the injustice of a social arrangement limits its viability.”26 His test case is slavery, and he is compelled by statements like Abraham Lincoln’s “Right makes might.” In considering the case of slavery specifcally, Cohen writes that slavery is a form of power “reproduced through force, strategic incentives, and moral-​religious norms.” Te crucial part of his argument is this: “slave interests in material improvement, autonomy, and dignity are revealed in the practices that reproduce slavery.”27 Tis is crucial because the implication is that slavery produced its own conditions for its undoing, since its injustice simultaneously provided the argument for its abolition, as all could observe slave owners’ determination to suppress those interests. I  say that this is the reason Cohen believes ethical explanations have force:  they track properties of injustice that themselves become apparent to a public, and if that public has even a minimal yet sufcient number of reasonable participants, then those properties eventually get taken up as warrants for the undoing of the injustice. I think Cohen is right to believe in the power of ethical norms. My departure from him is not with respect to either his conclusion or his method. Rather, I recast his more theoretical argument as a pragmatic one: What happens when competing publics work to defne a way of life, with one public properly tracking moral facts and another not doing so yet holding power? Tose who are properly tracking moral facts but do not hold much power can choose to take leaps of democratic faith in the name of our shared political experiment. Not knowing what the outcome will be, they can opt to make especially salient for those who are on the deliberative sidelines the need to accept what they are not conditioned to accept, on the grounds that doing so marks their standing as democratic citizens with greater integrity. But what about those not properly tracking moral facts? If they are the ones with power and privilege, then the project of stabilizing a decent society aimed toward justice may be at risk. Tere are two responses here. First, as explored earlier, Baldwin’s view is that blacks’ love becomes a necessary, if burdensome (for blacks),

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resource. It is on account of blacks’ extending love to whites that the former come to increasingly see the moral worth of black humanity and the urgency of the claims that spring from blacks’ humanity being truncated by injustices from which whites beneft. Second, we can now see that there are further resources for whites’ ability to acknowledge black humanity in the very structure of racial marginalization. Te efort to control black bodies would be worthless if it weren’t also true that those black bodies, if free, would demand their proper share of goods, for example. But notice, this itself presumes that these bodies could not only be free but also that their freedom would eventuate in moral claims to which others would be obligated to respond and bear the responsibility for denying. In this sense, oppression contains within it a nod to moral facts. Tus, oppression does not occur because of ignorance of those facts—​it occurs precisely to spite those facts. Suppose I am correct about that. If I am, we see a bit more clearly why Baldwin’s counsel to love is promising, even if very risky. Why? It might be the case that the immoral nature of an injustice leads to the undoing of the injustice, but that is not yet to say that the outcome is itself a lasting state of social justice. Te road of black history, pockmarked with the consistent collapse of promises, is testament to that. Put another way, the strains of democratic commitments are always liable to fray. So, we are faced with a question: Why, then, can’t we just wait and count on the arc of the moral universe (or others) to produce justice? Neither Cohen nor Martin Luther King Jr. thinks that the arc is a freestanding feature of our collective lives. Te arc might be grounded in something like moral facts, but those facts can have little grip on our collective moral imagination and motivation without cognition, sentiment, and persuasion. In other words, we are responsible for pulling it toward ourselves; and we are responsible precisely because oppression works to spite moral facts, not in ignorance of them. However, and this is a pivotal claim, every time there is an undoing of one racial injustice, it leaves open enough space for other injustices that become increasingly harder to name. Jim Crow is gone; the racially oppressive prison system is here, for example. But that latter system is a harder one to name as an injustice because our modern attitudes toward penality are bound up with the logic of law and order, thus few Americans think the system needs to be questioned—​it has been cast as fundamental to an orderly democratic system on account of that logic. Te role of love then, its hope, is in part that it can be essential to further bending the arc of the moral universe by distinctly enlivening our collective apparatus for perceiving increasingly fner details of racial injustice. Many more white Americans than do today must come to accept that the possession of privilege without genuinely earning it is a great crime against equality and liberty for everyone. Blacks, for their part, face a tough challenge: we must simultaneously hold in view the will to

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resist and the duty to embrace. It is this push and pull of our afective and rational capacities that has been our burden since America landed on us. But it is what it is, and we must fgure out how to get on with the business of living, of not being defeated before dying. Tere is work to be done to bring more of our co-​citizens into the fold of decency. When thinking of the challenges of this work, we should be compelled to take comfort in the poetry of Baldwin’s words and his strident faith in humanity: “Te universe, which is not merely the stars and the moon and the planets, fowers, grass, and trees, but other people, has evolved no terms for you existence, has made no room for you, and if love will not swing wide the gates, no other power will or can.”28

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Notes 1. John Rawls, A Teory Of Justice, rev. ed. (Cambridge, MA: Belknap Press, 1999), 41. 2. Ibid. 3. Ibid., 44. 4. James Baldwin, “No Name In Te Street,” in Baldwin: Collected Essays (New York: Library of American, 1998), 349–​476, quote on 391. 5. James Baldwin, “Te Fire Next Time,” in Baldwin: Collected Essays (New York: Library of American, 1998), 291–​348,quote on 291. 6. Ibid., 293. 7. Ibid., 294. 8.  See Chris Lebron, Te Making of Black Lives Matter:  A Brief History of An Idea (New York: Oxford University Press, 2017). 9.  For James Baldwin debate with William F.  Buckley, https://​www.youtube.com/​ watch?v=oFeoS41xe7w. 10. Baldwin, “Te Fire Next Time,” 292. 11. Ibid., 310. 12. David Leeming, James Baldwin: A Biography (New York: Henry Holt, 1994), 24. 13. Baldwin, “Te Fire Next Time,” 309. 14.  James Baldwin, “Go Tell It On Te Mountain,” in Baldwin:  Early Novels & Stories (New York: Library of American, 1998), 1–​216, quote on 12. 15. James Baldwin, “Notes Of A Native Son,” in Baldwin: Collected Essays (New York: Library of American, 1998), 5–​129, quote on 65. 16. Ibid., 16. 17. Ibid., 18. 18. Harry Frankfurt, Te Reasons of Love (Princeton, NJ: Princeton University Press, 2004), 37. 19. Ibid., 42. 20. Ibid.,  42–​43. 21. Ibid., 50. 22.  Susan Mendus, “Te Importance of Love in Rawls’s Teory of Justice,” British Journal of Political Science 29, no. 1 ( 1999): 57–​75, quote on 63.

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23. Ibid., 58. 24. Ibid., 69. 25. Ibid., 70. 26.  Joshua Cohen, “Te Arc of the Moral Universe,” in Te Arc of the Moral Universe (Cambridge, MA: Harvard University Press, 2011), 15–​74, quote on 17. 27. Ibid., 52. 28. Baldwin, “Te Fire Next Time,” 304.

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5 Deliberation and University Governance The Case of Brown Universit y ’s Diversity and Inclusion Action Plan

Richard M. Locke

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5.1  INTRODUCTION Elite institutions of higher education in the United States, including Brown University, have systematically failed to embrace people of all races, ethnicities, creeds, socioeconomic classes, gender identities, and sexual orientations. To confront this reality and respond to a wave of student protests that erupted during the 2015–​16 academic year, universities and colleges throughout the country launched a variety of initiatives aimed at promoting greater diversity on their campuses. Te proposals emerging from these myriad institutions were remarkably similar—​just about all of them promised to increase hiring of faculty from historically underrepresented groups (HUGs), enhance the diversity of their undergraduate and graduate student bodies, provide greater support to HUG communities already on campus, and invest in academic programs that focus on issues of race, ethnicity, identity politics, and social justice. Tis chapter describes Brown University’s experience with developing its own diversity and inclusion action plan (DIAP). Te development of the DIAP was a collective efort. But the Ofce of the Provost took the lead in engaging the various groups of students, staf, faculty, and alumni and in responding to their demands throughout the process of developing our university-​wide plan of action. 110

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Te intensity of the student mobilization around these issues was greater than anything the university had witnessed in decades. Beginning in mid-​October and continuing for several months, Brown experienced multiple student rallies and protests, the occupation of University Hall (our administration building), and scores of petitions, “open letters,” and community-​wide meetings with concerned students, faculty, staf, and alumni. As a relatively new university leader (I had been appointed four months before the protests began), I was unprepared for the intensity and tone of the mobilization that took place. And although I have worked on issues of labor/​social justice in the United States and abroad for years, I came to realize how little I knew about the challenges facing HUG faculty, students, and staf at universities like Brown. However, relying on the insights I had gained from Josh Cohen’s work on deliberation (see various essays in Cohen 2009), I was able to guide a process that led to the development of one of the most ambitious university diversity and inclusion action plans in the country (see appendix A). More specifcally, I drew on Cohen’s arguments about the importance (for democracy) of organizing deliberative processes in which participants are treated with respect, as “equals,” and that competing arguments/​alternative views are debated openly and with reference to the common good (in this case, the good of the university community). As part of our process to develop a university-​wide DIAP, we organized a series of open and broadly participative meetings in which contentious issues were debated (ofen repeatedly) before new, commonly shared positions were embraced by all participants. Power diferentials (between administrators and faculty, among faculty of diferent rank, and between faculty and students/​staf ) were of course present in the background of all these discussions. But the deliberative process guiding all these meetings was structured to moderate these power diferentials and promote respectful debate among all participants. Te decisions/​proposals that ultimately emerged from these discussions were the result not of power dynamics, with the more powerful groups imposing their own views, nor the result of distributive bargaining among competing groups trying to maximize their own self-​interest. Instead, many of the proposals and goals that were put forward in the fnal draf of the university’s DIAP arose through open, reasoned discussion and debate of alternative conceptions of the common good. Tis same process continues to shape the implementation of this plan. Tis chapter describes the process we undertook at Brown and seeks to generalize from this case study to argue that deliberation can be an efective model for how universities can address an array of complex issues they face these days.

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5.2 BACKGROUND: UNFULFILLED PROMISES For hundreds of years, historical legacies of oppression and discrimination have barred certain groups based on their gender, race, religion, sexuality, and socioeconomic class from access to and/​or full participation in higher education in the United States. Tis was especially true for groups that self-​identify as African American, Hispanic, American Indian, Alaskan Native, and Native Hawaiian—​what the U.S. Department of Education refers to as “historically underrepresented groups” (HUGs). As a 250+ year-​old liberal arts university, Brown shares much of this history. In fact, Brown was founded and originally funded by a slave-​trading family. Because Brown is based in Providence, Rhode Island (the eventual home of Roger Williams), it was always more tolerant of religious diversity. But it took many years for Brown to come to terms with its history (Brown University Steering Committee on Slavery and Justice 2007) and over time, it has opened its gates to women, blacks, Hispanics, Asians, and students from lower socioeconomic backgrounds. But the relationship between these historically underrepresented groups and the university has not always been easy. Since a “walkout” by black students in 1968, students have repeatedly protested and demanded that Brown University commit greater resources and efort to further diversify its students, faculty, and staf. Te university has responded, in turn, with various proposals aimed at supporting existing HUG students and faculty on campus and embarking on a variety of initiatives aimed at increasing the compositional diversity of the Brown community. Tese cycles of protest and institutional response seem to occur every decade. As part of my work on the university’s diversity and inclusion action plan, I read past diversity plans released by the university in 1968, 1972, 1986, 1992, 2001, and 2006. I was astounded to see how many of the same issues we are struggling with today were raised in these past cycles of protest and how many of our current strategies to address these issues echo proposed solutions elaborated in the past. Notwithstanding this long history of protest and institutional response, and what I assume to be the good intentions of former university administrators to implement the proposals in these past plans, progress has been mixed. For example, over the last ten years, the percentage of undergraduate students from HUGs has grown from 14.1 percent (2004–​05) to 18.6 percent (2014–​15) while the percentage of HUG graduate students has grown from 5.7 to 8.8 percent in those same years. And while the percentage of medical students from HUGs is impressive (23.3% in 2014–​15), the percentage of HUG faculty in the university as a whole has hovered between 7 and 8 percent for the last decade. Te lack of signifcant progress on diversifying the student body and faculty, as well as the perceived lack of understanding of and appreciation for issues of race,

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power, and privilege within the university community (especially among white faculty members), provoked a new round of student protests in the fall of 2015. Tis latest wave of protests also took place within a broader context shaped by a national movement (Black Lives Matter) contesting the systematic murder of people of color. Together, these local and national factors combined to generate an intense wave of student protests at Brown and many other universities and colleges across the country. Once again, Brown students demanded greater diversity of the faculty, the student body, and the senior administration. Once again, the students demanded greater investments in courses and academic programs that promoted awareness of and appreciation for issues of race and ethnicity in the United States. And once again, HUG faculty demanded greater support for their work, improved mentoring programs, and more robust recruitment eforts to grow their ranks. Tese demands were expressed in diferent ways. Some demands were sent as emails to the university’s president and provost. Others were expressed in “open letters” published in the student newspaper, Te Brown Daily Herald, as well as the Hufngton Post. Most were communicated verbally at diferent rallies; meetings with particular groups of students, staf, and faculty; open community fora; and during the occupation of University Hall.

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5.3  RESPONSE: CRAFTING A UNIVERSITY DIVERSITY AND INCLUSION ACTION PLAN In order to respond to these diferent demands and develop a coherent but realistic plan, the university president, vice president for diversity and inclusion, and I aggregated these diferent demands and drafed an action plan. Tis draf plan was released to the community on November 19, 2015. In an efort to solicit and collect feedback from the broader community, we invited all Brown faculty, students, and staf to comment on the draf and its specifc proposals, and we created a website where members of the Brown community could anonymously submit suggested amendments, criticisms, edits, and general feedback. Tis online feedback process continued until January 8, 2016. Te goal was to collect and analyze the feedback and integrate it into a fnal draf of the DIAP, which was to be released on February 1, 2016. We also invited faculty, staf, students, and alumni to send us emails with their suggestions, criticisms, and feedback. By early January, we had received 720 unique online comments, edits, anecdotes, and additional proposals, as well as 35 emails. In addition to this online/​email feedback, we organized numerous community fora and meetings with specifc groups to discuss the draf plan and solicit

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feedback. Along with my chief of staf and assistant provost, I  participated in all these meetings, which included:

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• • • • • • • • •

University Faculty Meeting (December 1) Undergraduate Student Council Open Forum (December 1) Staf Open Forum (December 4) Academic Priorities Committee (December 8) Faculty Forum (December 9) Faculty of Color Group (December 10) Concerned Graduate Students of Color and Allies (December 11) Department Chairs and Center Directors Meeting (December 14) Administrative Leadership Group (December 18)

Hundreds of people attended each of the faculty, student, and staf open meetings and the discussion was ofen spirited and contentious. As a result of this feedback process, the assistant provost and I spent the second half of January redrafing the DIAP and writing up two memos that tabulated, categorized, and responded to all the feedback we received from the diferent sources and venues in order to demonstrate to the community that we had actually read/​heard the feedback and were integrating much of it into the fnal draf of the plan (see appendix B for a summary of the community feedback). Before releasing the fnal plan, we shared the penultimate draf with the university president, all the senior deans and vice presidents, the Faculty of Color group, the Concerned Graduate Students of Color group, and key faculty members, staf leaders, and alumni. My chief of staf, the assistant provost, and I  met with several of these groups to gather one more round of edits and feedback. Te fnal draf of the DIAP was released on February 1, 2016. Te Brown University Corporation voted to endorse the plan, Pathways to Diversity and Inclusion: An Action Plan for Brown, on February 6, 2016. Since then, we have been busy implementing the plan. Te early results are promising:  during the 2015–​16 academic year, one-​third of all faculty hired at Brown were from historically underrepresented groups. During the 2016–​17 academic year, this number grew to 41 percent of all new faculty hires. Te number of HUG students matriculating in our graduate programs has doubled over the last two years. New programs aimed at building the pipeline of HUG faculty and students have also been launched. Tese include new and expanded outreach programs to HUG undergraduate and graduate applicants, the expansion of a high-​touch graduate training program in the biomedical and physical sciences, the expansion of the Target of Opportunity (TOO) faculty hiring program, the launch of a postdoctoral

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fellowship program and senior visiting scholar program aimed at attracting both young and established HUG scholars to Brown, and the creation of a Faculty of Color Mentoring Network. We have also established a new center for frst-​ generation/​low-​income students and a new initiative focused on Native American and Indigenous Studies. Promoting these changes required much efort and time by many people (faculty, staf, students, and administrators) throughout the university, and we still have much work to do in the coming years. Looking ahead, we must be vigilant against complacency in order to guarantee that the current DIAP not become yet another promising but ultimately unsuccessful diversity plan, to be added to the long list of other past plans. In what follows, I  describe two features of the process that highlight the importance of deliberation in crafing Brown’s DIAP: the role of deliberative fora in working through controversial proposals in the draf DIAP, and the deliberative/​ experimentalist process through which all academic departments developed their own diversity and inclusion plans.

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5.4  CRAFTING THE UNIVERSITY-​W IDE PLAN: THE ROLE OF DELIBERATIVE FORA I have listed the various meetings and community open fora that were organized to explain the specifc proposals of the DIAP and solicit feedback. At these various meetings, as well as in the feedback we received online and through email, two issues—​faculty hiring and training/​professional development—​emerged as especially polarizing within the Brown community. Te role of deliberation in these open community meetings was key to airing and debating competing views on these goals and arriving at new proposals that all participants in these fora could embrace. In the original draf of the DIAP, the university committed to doubling the number of tenure-​track faculty from historically underrepresented groups by 2024–​ 25. Tis amounted to an increase of about 60 HUG faculty members over ten years. Te draf was somewhat vague on how we hoped to achieve this goal, but listed various programs (i.e., new endowed professorships, Target of Opportunity programs, cluster hiring, pipeline programs, etc.) that we planned to employ to recruit these new members of the faculty. Tis goal provoked starkly diferent reactions. Some faculty and students felt that this goal was insufcient and that we should double the percentage of HUG faculty in three to fve years, not over a decade, and double it again by 2024–​25. Others felt that this goal was unrealistic given the alleged paucity of HUG faculty and graduate students in various academic disciplines. And still others worried openly that the university would compromise academic excellence

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and “quality” in an efort to meet its goals of diversifying the faculty. Each of these views was shared in smaller group meetings or individual emails and phone calls. Tey were also expressed openly in the two faculty meetings dedicated to the DIAP (which drew standing room only crowds—​not the norm at regular faculty meetings). Tese faculty meetings were organized so that all participants would be well informed about the specifc proposals in the draf DIAP (everyone with a Brown email address received a copy of the plan in advance of the meeting and I opened both meetings by summarizing the key features/​proposals of the plan). Members of the Faculty Executive Committee (an elected body of senior faculty across the university) moderated these discussions so that all participants could speak openly about their views/​concerns regarding the DIAP. Skillful moderation was key in preventing these discussions from being dominated by a small number of individuals or devolving into unconstructive debates between opposing camps of opinion. By giving individual faculty the ability to voice their views, listen to other colleagues express competing opinions and concerns, and then have the provost and president present them with details on how we imagined the Target of Opportunity and pipeline programs would work at Brown, most (but not all) these individual faculty were able to move from their original positions to a more common view. Important in these discussions was the sharing of data and detailed examples of how diversity pipeline and hiring programs actually work. Te president, vice president for diversity and inclusion, and I shared with attendees at these meetings some basic data from various minority professional associations, the Mellon Mays Undergraduate Fellows program, and our own nascent pipeline programs to show that we could—​ with efort and focus—​meet our goals. We also realized that the goal of doubling the number of HUG faculty in ten years was not an especially ambitious target. As a result of the deliberative process that took place at these meetings, a new proposal emerged in which the university would commit to double the number of HUG faculty in fve to seven years and would work closely with the individual departments and schools to develop customized Target of Opportunity programs, postdoctoral fellow programs and other pipeline eforts. Tis proposal was ultimately embraced by just about all faculty, including the original critics. Trough our discussions and the presentation of data, we were able to show the skeptics that we could, with targeted eforts, achieve our goal without in any way compromising our academic standards. In fact, out of this process (airing of competing views, the presentation of data and detailed examples, and deliberation) a new narrative developed. Tis new narrative revolved around the idea that Brown’s pathway to academic excellence and distinction would occur through the university’s DIAP and not in spite of it. In other words, if we could deliver on our goals, Brown would quickly become known as the Ivy League university that both promoted academic

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excellence and provided a diverse and inclusive community for all students, faculty, and staf. As a result, “the best and the brightest” would come to choose Brown over some of our larger, better known, and better resourced peers and a virtuous cycle of diversity, inclusion, and academic excellence/​distinctiveness would follow. I have since popularized this new narrative. Tese days, when I  present the university’s DIAP to various audiences, I stress that we are pursuing these goals not just because it is the “right” thing to do (aligned with the university’s mission of serving our community and nation, honoring past commitments, educating future leaders, etc.) but also because it is the “smart” thing to do (it is our pathway to distinction). A second issue that generated signifcant disagreement within the community revolved around training/​professional development. Activist undergraduate and graduate students demanded that all faculty members undergo mandatory “anti-​ oppression” training in order to understand and more fully appreciate the ways in which racism, power, and privilege shape the educational experience of HUG students on campus. Tese student groups presented a list of grievances, sometimes calling out individual professors and staf members, who they felt engaged in macro-​and micro-​aggressions and needed to be disciplined, if not retrained. Some members of the faculty and staf agreed with this assessment and supported the student demands. However, the majority of faculty opposed this proposal and demanded that the university protect their “academic freedom” and disciplinary expertise. Tey argued that our students were becoming too coddled, fxated on “trigger warnings” and classroom climate rather than on learning. And while this latter group pointed to the failure of mandatory diversity training programs in private sector/​corporate settings (Dobbin and Kalev 2016), the former group argued that their proposals were simply an extension of the mandatory occupational health and safety training all people working in laboratories undergo, or even the mandatory human-​subject training that most life science and social science researchers must pass before the IRB (institutional review board) permits their projects to go forward. In other words, if the university were truly serious about diversity, it would mandate anti-​oppression/​diversity training as well. Within the administration, we were divided. Some of us initially believed that mandatory diversity training was essential if we were to truly change some of Brown’s basic policies, practices, and culture. Others felt it would be at best a waste of efort, forcing busy people to undergo training that everyone recognized was inefective, or even worse, an empty gesture that would get the student protesters of our backs but not really bring about any meaningful change. Once again, these competing views were aired and discussed at the public meetings and presented as arguments for the common good of the university (protecting academic freedom vs. promoting an inclusive culture). And once again, we presented all

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attendees with data—​this time from research on the efectiveness (or lack thereof ) of private-​sector diversity-​training programs. We shared research by Professor Frank Dobbin and his colleagues on this topic with all concerned faculty and students and invited him to speak to a group of senior administrators, faculty, and staf. One of the key fndings of Dobbins’s research is that “opt-​in” professional development programs focused on specifc issues are more successful than mandatory general diversity training programs (Dobbin and Kalev 2016). Out of this process of airing and discussing competing views in an open and respectful manner, and consideration of the research fndings of Dobbin and others, a new proposal emerged that addressed the concerns of both camps. All key decision-​ makers at the university—​ senior administrative leaders, student-​ facing deans, and all members of the university’s tenure and promotions committee—​would receive training on implicit bias and stereotype threat and how these impact our assumptions and behaviors. In addition, the university would sponsor a series of “opt-​in” professional development opportunities for all faculty and staf that would cover a broad range of topics, including structural racism, stereotype threat, implicit bias, the history of student activism at Brown, Islamophobia, and so on. Tis new proposal was accepted by all sides of the debate and implemented over the course of the year. At the end of February 2016, we hosted a day of professional development workshops and seminars focused on diversity and inclusion. Tese workshops were open to all faculty and staf and were voluntary. More than 600 members of the Brown community attended. Since then, we have sponsored a series of public lectures and lunchtime seminars/​workshops/​trainings and they are consistently at capacity. Tis level of participation by otherwise busy (and at times cynical) faculty members indicates that through a process of discussion, presentation of facts, and deliberation of competing arguments on this difcult issue, we were able to develop a plan that just about all faculty members could embrace.

5.5  THIS TIME IT’S DIFFERENT: DELIBERATION AND EXPERIMENTALISM IN DEVELOPING DEPARTMENTAL DIVERSITY AND INCLUSION ACTION PLANS One of the key features of Brown’s DIAP was to require that all academic departments and centers develop their own departmental plans. Having read through a series of past (and mostly unfulflled) university diversity plans, it occurred to me that many of them were well intended but highly centralized documents in which the university administration would declare goals and announce programs, and expect that the individual departments and centers would fall in line and hire diverse faculty,

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recruit diverse students to their graduate programs, and reform their curricula to provide greater attention to issues of race and ethnicity in the United States. In many ways, these documents were a combination of vision statements and compliance protocols, and thus it should come as no surprise that they produced mixed results. In my own research, I have argued that traditional compliance programs/​ mechanisms promote (at best) mixed outcomes, and that developing the capabilities of key actors is more efective in promoting signifcant and sustained organizational change (Locke 2013). As a result of this reading of past plans and their mixed outcomes, and my own work on organizational change, we decided to require that all academic departments at the university (and later on, all administrative units as well) develop their own DIAPs. Te theory of change implicit in this decision was that if the basic building blocks (academic departments) engaged in the same deliberative process that we promoted at the university level, chances were that we would arrive at common goals that could be embraced fully by the faculty and students. Te hope was that this departmental-​level deliberative process would produce a more robust set of actions and thus avoid the mistakes and missteps of the past. We also felt that given the different realities of Brown’s numerous departments (the demographic composition of their faculty and students varied; their academic programs engaged issues of race and ethnicity in very diferent ways or not at all—​imagine the diferences between the Africana Studies and Applied Mathematics departments), it would be best not to impose uniform expectations/​targets on all of them but, rather, have them develop their own goals and proposals for how to achieve them. In addition, we felt that it was essential that all academic units engage in department-​wide (i.e., including students, staf, and faculty) discussions of these issues as a way of addressing climate issues within individual departments and (we hoped) generate buy-​in for the goals of the university-​wide DIAP. We did not instruct the departments on what to include in their individual plans, but we did send each of them demographic data on the composition of their current faculty, staf, student concentrators, and students enrolled in their classes, as well as results from faculty searches, over the past fve years. We also sent them a list of suggested topics to cover in their plan:  departmental climate, hiring plans and practices, mentoring programs, curricular issues, and outreach programs. Departments could choose to include all or none of these suggested topics in their individual plans, but they did need to document the process through which their plans were developed, with a clear message that we expected the discussions/​ deliberations informing these departmental plans to be as inclusive as possible. We asked that all plans be delivered to the provost’s ofce by June 1, 2016. I  made it clear (repeatedly) that I would only authorize faculty hiring/​search requests from

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departments that had submitted approved (by me) DIAPs. To facilitate this process, the vice president for diversity and inclusion visited numerous departments and advised them on how best to structure their internal discussions and draf their plans. In addition, I used two monthly meetings (90 minutes each) of all the departmental chairs and center directors to share examples of good departmental plans and facilitate discussion among the chairs who had concerns surrounding this process and/​or wanted to describe already existing departmental “best practices.” By early June, my ofce had received 51 departmental plans. A team consisting of me, my assistant provost, the vice president of diversity and inclusion, and the deans of the Faculty, College, and Graduate School read through all the departmental plans and sent written comments/​substantive feedback to each department by late July. We wanted to show the departments that we valued all the time and efort they had devoted to this process and that we had actually read their individual plans. We requested that all departments revise their plans and resubmit them to my ofce by early September. All departmental plans were then posted on a university website open to anyone with a Brown ID. Te idea was to make these plans as transparent as possible, with the hope that this would enhance accountability. Each year, all departments are asked to update their departmental diversity and inclusion plans and post these updates on the university website dedicated to the DIAP. In addition to the written feedback, over the summer I  hosted a series of meetings that brought together the chairs of departments within the same cluster or division (e.g., chairs of all the humanities departments, or of all the physical science departments, or of all the social science departments). In advance of these meetings with these groups of department chairs, I shared with them each other’s departmental plans and then, during our meeting, moderated a discussion focused on common challenges, best practices, and possible synergies across the diferent departments. Tese meetings lasted on average two hours and were highly productive. Te internal benchmarking, open discussion, and creative thinking about cross-​departmental initiatives that took place among chairs from relatively similar departments was fascinating. For example, during the meeting with the chairs of the various physical and computational science departments, plans for establishing a joint speakers series that highlighted the work of HUG scientists was developed. And department chairs borrowed innovative ideas and initiatives from one another. Te Computer Science department hired a small group of HUG undergraduates to help write the department’s own DIAP. Tis idea was subsequently copied by the other departments. As a way of attracting HUG students to their courses and concentration (major), the Applied Mathematics department created new undergraduate research opportunities for HUG students. Tis initiative was soon replicated by the other physical and computational science departments. At the frst meeting of

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all the department chairs and center directors in the new academic year (September 2016), I asked several of the chairs to share with all other department chairs/​center directors some of the exciting academic programming, recruiting strategies, and hiring initiatives they had launched as a result of this process. What is especially interesting about the process of developing departmental diversity and inclusion plans is how it combined both deliberation and experimentalism. Te university-​wide plan set broad goals and parameters on the process, but each academic unit had to fgure out for itself how best to promote greater diversity and inclusion within its own community. As provost, I insisted on two things: (1) that the departmental discussions/​deliberations around these plans be inclusive—​ include not just faculty but also students and staf; and (2) that they specify not just targets/​goals but also mechanisms through which they would achieve these goals. Te meetings with clusters of department chairs also allowed departments to benchmark against one another, share best practices, and discuss common challenges. Tis combination of central targets, departmental deliberations and self-​generated proposals, and benchmarking meetings in many ways resembles the experimentalist governance processes described by Sabel and Zeitlin (2012). Most of these departmental plans included proposals to develop their internal capabilities so that they could best achieve their departmental goals. Many of the departmental plans included notes from or summaries of their meetings. In my meetings with individual chairs and with clusters of chairs over the course of the summer, I asked all of them to describe the process through which their departments developed the plans. Once again, deliberation played a key role in reconciling competing views and even visions for how particular departments could become more diverse and inclusive. Discussions centered on faculty search processes, graduate student recruitment, ways of reforming their curriculum to engage more HUG students, and/​or how to cover material related to issues of race and ethnicity. In some departments, students sought to change basic governance processes (i.e., participate in tenure and promotion discussions) or once again require that all faculty submit to mandatory anti-​oppression training. In other departments, groups of faculty resisted all changes, claiming that the pipeline for HUG faculty and graduate students in their disciplines simply did not exist. Yet in all these departments, these contrasting views were aired and debated, new facts and arguments were brought to bear to shape the conversations, and consensus formed around a focused number of proposals that all members of the community could support. For example, in most departments, students demanded that the curriculum include courses on race, ethnicity, and social justice and how these issues applied to the specifc academic discipline or feld. In many departments (e.g., history, American studies, political science, economics, literature, etc.), this proposal was relatively

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straightforward and many of these departments were already ofering or could easily ofer courses with this content. Other departments (e.g., the mathematical and physical sciences) were at a loss as to how they could teach basic principles of mathematics or engineering or computer programming and engage honestly with issues of race and ethnicity in the United States. In my discussions with individual department chairs and also from reading their meeting transcripts and notes, I was able to piece together a deliberative process in which a group of students, sometimes joined by individual faculty members, would present their arguments for why it is important to engage issues of race and ethnicity in the curriculum of all departments, while some faculty would articulate an alternative argument for how the basic principles of the discipline were what needed to be taught and that issues of race, ethnicity, power, and privilege, while important, could not be “shoe-​horned” into the material that is foundational to their specifc disciplines. Tese exchanges were at times heated, but the results of these discussions and of this deliberative process were great. In all departments, new proposals emerged that could be embraced by all participants. Sometimes this did, in fact, entail new courses. One example was in the Department of Earth, Environment, and Planetary Sciences, which developed a new course on the History of Confict Minerals as one of their introductory courses. In other cases (mathematics, applied mathematics, music, and physics), the departments designed new introductory courses and research opportunities that would attract more diverse students to their concentrations. Since I explained to all faculty and students that these departmental plans would be “living/​working documents” to be discussed and revised over time, departments came to understand that the conversations that they had begun in the spring of 2016 would be ongoing. Tat these conversations had taken place at all was a major shif in their departmental practice and culture. Although issues of race, ethnicity, power, privilege, and so on may have been raised among some faculty and students in some (limited number of ) departments, never before had all departments so thoroughly engaged these issues and thought hard about how they could contribute to the university’s eforts to create a genuinely diverse and inclusive academic community. 5.6  GIVING VOICE TO THE (MOSTLY) SILENT (MODERATE) MAJORITY Te 2015–​16 academic year, during which many of these events took place, was an especially tense and politically (emotionally) charged period on campus. At Brown, as in many other universities and colleges across the country, a few incidents occurred in which individual administrators and/​or faculty, and even a few outside speakers, were shouted down or called out in a very public manner. In December 2015,

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I experienced this frst-​hand when a small group of students occupied University Hall and asserted that they were not interested in listening to what a “white, cisgender man” had to say. In the spring of 2016, a very public debate between a HUG undergraduate student and his white male professor took place over the educational value of specifc course readings. Te professor claimed that the readings were classics in the feld and should be taught. Te undergraduate student argued that they were outdated and racist in their portrayal of poor, urban black family life. As a result of these and a small number of other incidents, numerous faculty and students reported that they felt nervous, at times even fearful, of speaking up in class or during public events for fear that they would unwittingly ofend HUG students and/​or faculty colleagues and thus be called out and criticized publicly. Some faculty members and students joined with others across the country demanding that universities protect their “free speech” and not permit “political correctness” from “censoring” more conservative voices and perspectives. To address this issue, the president and I  co-​sponsored a new series called “Reafrming University Values: Campus Dialogue and Discourse” to explore and model constructive and engaging ways for the campus community to discuss controversial issues and conficting views and perspectives. During the 2016–​17 academic year, we hosted ten lectures and panel discussions. Topics included freedom of speech on campus, public narrative as a leadership/​communicative craf, the history of immigration policy in the United States, Islamophobia, teaching difcult topics in a politically charged environment, and the origins and implications of white nationalism. All these lectures/​panel discussions attracted “sold-​out” crowds and all of them involved spirited but respectful discussion and dialogue among participants. Te goal of this initiative is to model constructive behavior and remind the campus community of the university’s core values of fact-​based inquiry, open and respectful dialogue, and intellectual pluralism.

5.7 CONCLUDING CONSIDERATIONS Tis chapter has described the process through which Brown University developed its most recent DIAP. Te success of this plan will hinge on consistent monitoring and oversight at the highest levels of the university, on accountability by the entire Brown community, and on the continued engagement of a wide range of community members, including faculty, students, staf, and alumni. But the experience at Brown also provides insights into how a process grounded in/​g uided by deliberation can transform a highly contentious climate in which competing groups of students, faculty, and staf were struggling over not just

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academic programming and conventional hiring and recruitment processes but also the place of diferent identity groups within the university community and how we treat one another fairly and respectfully. Initially, the demands by these competing groups appeared to be irreconcilable. But through a lengthy and highly participatory process in which all groups could express their concerns and demands, and discuss them with other groups who ofen held alternative views, we were able to move most people away from their original positions and toward a common set of proposals and actions. How these discussions were structured and moderated made all the difference in shaping the outcome of these discussions. Whether or not this process ultimately succeeds will depend on our ability to deliver on our promises. But given the increasingly complex reality of universities today and the many contentious issues that we will face in the near future (e.g., budgetary constraints due to new federal tax legislation; support for students, faculty, and staf with Deferred Action for Childhood Arrivals (DACA) status and those who are undocumented; protecting academic freedom and scientifc research on areas such as climate change and reproductive rights in the current (post-​fact) political environment, etc.), my hope is that the lessons learned at Brown might be generalizable to other universities wrestling with similar or even diferent contentious issues in the future. Deliberation is a process that builds the necessary individual and organizational capabilities to address these complex issues in ways that strengthen (as opposed to divide) our communities. It is a way of tapping into the collective intelligence of our community to expand the range of possible solutions to the vexing problems we face. And it is a process through which we reinforce our basic values of fairness, respect for diferences, and the centrality of fact, logic, and active listening to shape our decision-​making. In these troubled times, we need deliberation and the values it reinforces to protect not just universities but also our fragile democracy. Appendix A Te Action Plan I.  PEOPLE Brown seeks to identify, recruit, and retain individuals from groups that have been historically underrepresented in higher education. To do this, we will: 1. Develop and sustain a diverse faculty at Brown, with the goal of doubling the number of tenure-​track faculty from historically underrepresented groups by 2022. Tis amounts to an increase of at least 60 faculty members over the next fve to seven years. To realize this goal, we will:

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• Require departments to create diversity and inclusion action plans: Every department will submit an approved plan (approved by the Provost and Vice President of Academic Development, Diversity, and Inclusion) for diversifcation and inclusion before any faculty hiring requests are authorized for AY 2016-​17 and for the duration of this plan. Tese Departmental Diversity and Inclusion Action Plans (DDIAPs) should include information about past hiring and refect the specifc steps that departments will take to identify and consider candidates from historically underrepresented groups when replacing retiring or departing faculty. • Create endowed professorships: As part of the BrownTogether campaign, which aims to establish more than 100 endowed professorships over the next decade, we will create endowed professorships (both junior and senior) that will support faculty who are models of excellence in researching issues of diversity, social justice, power, and privilege around the globe. Tis is aligned with a number of the themes of Brown’s strategic plan, Building on Distinction, including (but not limited to) “Creating Peaceful, Just, and Prosperous Societies,” “Exploring Human Experience,” “Deciphering Disease and Improving Population Health,” and “Cultivating Creative Expression.” • Connect with diverse early career scholars: Brown created the Young Scholars Conference program in 2015-​16 to provide small, integrative opportunities for diverse graduate and postgraduate fellows. Two conferences will be held in this and in future years, creating knowledge about and connections to a signifcant group of potential candidates for faculty positions. • Create a pipeline from postdocs to faculty: Brown launched the Presidential Diversity Postdoctoral Fellowship Program in 2015-​16 to support the development of early career scholars who add intellectual diversity to the campus, with a specifc emphasis on recruiting Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

scholars from historically underrepresented groups. Six scholars will be recruited each year (for two-​year appointments) to teach in a variety of disciplines. By hosting 12 postdoctoral fellows each year, this program diversifes the teachers and academic topics to which our undergraduates are exposed, enriches the intellectual life of the campus, and serves as a mechanism by which talented early scholars can be recruited into tenure-​track faculty positions at Brown. We are currently seeking grant funding that would create a direct connection of diversity postdoctoral fellowships to tenure-​track positions. • Engage in cluster hiring: Our eforts to diversify the faculty will be most successful if we create communities of diverse faculty who are connected by common research interests. Te integrative themes highlighted in Brown’s strategic plan lend themselves naturally to cluster hiring initiatives. In 2015, Brown hired an Associate Dean of the Faculty for Special Initiatives to focus on plans for diversity cluster hiring for faculty positions in the physical sciences. Based on the success of this work, we will announce parallel cluster hires in social science and the humanities by the end of 2016. We will appoint a second, permanent Associate Dean of the Faculty for Special Initiatives to continue coordinating these eforts in the social sciences and humanities.

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• Revitalize the Target of Opportunity Program: We will use the Target of Opportunity program to identify and hire faculty of exceptional merit and promise, including members of historically underrepresented groups. Approximately 25% of newly funded incremental positions and 25% of existing slots that become vacant during the plan period will be flled through the Target of Opportunity program. Academic unit requests for consideration for Target of Opportunity hires will include a review of past hiring practices and of planning for future faculty hiring that include diversity eforts. • Launch a Diversity Visiting Scholars Program: In addition to the Presidential Diversity Postdoctoral Fellowship program, aimed at recruiting junior scholars, we will launch by the end of 2016 a new Diversity Visiting Scholars program aimed at recruiting senior scholars from historically underrepresented groups to teach and conduct research on issues of race, ethnicity, and identity. Tese will be one-​year (renewable) appointments aimed at enhancing our teaching and research programs while also serving as a possible pipeline for future faculty recruits. • Invest in mentoring: To support faculty of color at Brown, we will ofer mentoring opportunities that connect junior faculty with senior faculty inside and outside their individual departments. Tese programs have been found to have positive benefts for professional development, retention, and community building. To recognize the service of these faculty mentors, we will encourage departments to provide relief from other service obligations and/​or provide research support for their scholarship. In addition, department chairs and center directors will be asked to address the additional advising and mentoring burdens that ofen fall to faculty of color. Te Provost’s monthly meeting with department chairs and directors will highlight and difuse best practices in these areas. • Create faculty networks that increase success among diverse faculty: Tis year, the Ofce Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

of Institutional Diversity and Inclusion (OIDI) in partnership with faculty, established the Faculty of Color Network to provide social support, mentorship, and professional development for diverse faculty. We will continue this network with aspirations to collaborate with other institutions of higher learning around the state. Te faculty network will launch an incoming orientation for faculty of color to introduce them to the broad network of resources available to support their research and curriculum development eforts. Tis will be jointly managed by the Dean of the Faculty and the Vice President for Academic Development, Diversity, and Inclusion. • Institute professional development training for members of the Tenure, Promotions, and Appointments Committee (TPAC): We will provide annual training on diversity and inclusion, as well as training to avoid conscious and unconscious bias for all TPAC members. • Increase the representativeness of historically underrepresented groups among the Medical School’s clinical faculty: Te Warren Alpert Medical School will work collaboratively with and monitor the afrmative action eforts of the afliated hospitals and physician practice organizations which employ many of the School’s clinical faculty.

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We expect that many of these initiatives will lay a foundation that will promote faculty diversity well beyond the initial timeline outlined in this plan. 2. Diversify the graduate and medical student bodies at Brown, with the goal of doubling the number of graduate students from historically underrepresented groups by 2022, and sustaining and enhancing the successful recruiting of historically underrepresented groups in medicine. To do this, we will: • Expand graduate fellowships: We will create 25 new graduate fellowships over the next fve years to enhance the diversity of Ph.D. students. Tese will be granted in addition to current departmental allotments by the Dean of Graduate School. • Invest in enhanced graduate education: We will expand programs, such as the successful National Institutes of Health-​funded Initiative for Maximizing Student Development (IMSD) program, which has led to increases in graduate student diversity in the Division of Biology and Medicine, the School of Public Health, and the Life Sciences, to other Ph.D. programs throughout the University. Such programs will provide additional research training, support, and mentoring for graduate students from historically underrepresented groups. Te Provost has already allocated seed funding to jump-​start these eforts for this year. We anticipate applying for foundation and/​or federal funding to support this work. • Develop research opportunities for aspiring Ph.D. students: Brown has been a hub for promoting the academic development of HUG undergraduates through the Leadership Alliance Consortium and the Brown-​Tougaloo Partnership. To expand these eforts, we will develop a relationship with a Hispanic Serving Institution to launch a partnership in summer 2017. We will also explore the possibility of expanding the Tougaloo partnership. Tese programs will bring undergraduate students to Brown to engage in research Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

and learning opportunities that prepare them to be competitive for admission into Brown’s graduate programs. • Develop residential summer seminars for aspiring Ph.D.  students: We will fund departments to enable them to run summer immersion programs, which provide a two-​ week summer residential program with intensive coursework and mentoring to help undergraduate students from underrepresented groups aspiring to enter Ph.D. programs. Tis program was successfully piloted at Brown in summer 2015 and will be expanded to more departments. Interested departments may request funds to support this efort as part of their Departmental Diversity and Inclusion Action Plans (DDIAPs). • Increase diversity in the Warren Alpert Medical School and afliated residency programs: Te Medical School will grow its diverse student body by building on the successful recruitment eforts of all of its current admission pathways. Tis includes the Program in Liberal Medical Education (PMLE) and the Early Identifcation Program, as well as post-​baccalaureate and standard admissions. Trough the Ofce of Diversity and Multicultural Afairs (ODMA), we will direct recruitment eforts to students of historically

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black colleges and universities as well as Hispanic-​serving institutions. Te ODMA will continue its successful collaboration with the Brown Minority Housestaf Association (BMHA) to provide mentorship and role models for students, and collaboration in recruitment eforts across afliated residency programs. Tese eforts recognize that many residents transition to junior faculty positions upon graduation. In order to encourage diversity in residency training, the medical school will review social, cultural, and other barriers that may discourage members of historically underrepresented groups from participating in area residency programs. Te medical school will also seek to develop new pipeline programs to identify and prepare underrepresented students for careers in medicine, including the Pathways to Medicine Program aimed at preparing academically disadvantaged students for medical school admission. • Hire staf who are dedicated to recruiting diverse graduate students: Te Graduate School has recently hired a new full-​time assistant dean tasked with developing a strategic recruitment plan in collaboration with all graduate programs. Tis strategic recruitment plan will identify and target promising students for Brown’s doctoral and masters programs. Te Warren Alpert Medical School is also flling a similar position to oversee its diversity eforts. 3. Enhance diversity among our undergraduates with a specifc focus on African American/​ Black, Latinx, Native American, Southeast Asian, Pacifc Islander, frst-​generation, low-​ income, and undocumented students: • Expand partnerships with organizations that promote opportunities for high school students of color: Partnerships with organizations that provide talented high school students with mentoring and other assistance with college preparation are increasingly important to identifying and recruiting diverse undergraduates. An example is College Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

Horizons, a program for Native American, Alaskan Native, and Native Hawaiian students that includes a summer component, which Brown will host in summer 2016. In addition, the large summer programs at Brown have established relationships with more than 40 partnership organizations across the country and bring hundreds of students to campus each summer with their help. We will expand this efort, funding more students from current partners and seeking additional partners across the country to increase the number of students from historically underrepresented groups. • Expand resources for A  Day on College Hill (ADOCH): We will double the current funding to bring low-​income students from diverse backgrounds to attend ADOCH, Brown’s annual spring recruiting program for admitted students. We will do this through greater fnancial assistance for travel and more intensive recruiting by alumni and current students. We will also expand resources for low-​income students to bring a parent or guardian with them for the school visit. • Increase aid funding, enrollment, and programming to encourage growth in diversity in Summer@Brown: Tis program brings thousands of high school students to campus each

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summer to take college-​level and college-​exploration courses. We will expand existing eforts to recruit a diverse student population from across the nation and increase programmatic support for frst-​generation and other diverse student populations who attend Summer@ Brown. Curricular and co-​curricular programming will incorporate awareness and focus on diversity in order to serve both minority and majority populations in enhanced learning opportunities. Tese programs ofer an opportunity for faculty and graduate students to pilot new courses and curricular components arising from OIDI seed funding and encouragement from the DoC curriculum committee (see more in “Curriculum” below). 4. Promote hiring practices, professional development, and mentorship programs that will increase the diversity of staf and further their careers, especially staf from historically underrepresented groups. University Human Resources (HR) will: • Improve communications about hiring practices and professional development: We will establish a working group to identify ways to improve communication to the Brown community about existing hiring practices, career pathways, and professional development programs, including the sessions and courses currently ofered on-​site by the Center for Learning and Professional Development and the opportunities for fnancial assistance provided through the Employee Education Program to take degree courses at Brown and other degree-​granting institutions. • Improve communication with hiring managers regarding Brown’s Afrmative Action Plans: Tese annual plans include goals to recruit minorities, women, veterans, and individuals with disabilities. HR will sustain training and support to hiring managers regarding their role in supporting these plans. • Develop a pipeline of diverse temporary employees from the local community: We will require the preferred temporary stafng agencies that Brown uses to build a workforce deCopyright © 2019. Oxford University Press USA - OSO. All rights reserved.

velopment program aimed at developing a more diverse pipeline of qualifed local applicants for temporary and permanent positions at Brown. • Pilot an Administrative Fellows Program: Te goal of this program will be to attract talented professionals from historically underrepresented groups to leadership positions in higher education by ofering 12-​month work assignments at Brown, complemented by a professional development seminar series. Tis program may include Visiting Fellows (those who would come from outside Brown) and/​or Resident Fellows (those currently employed at Brown). • Expand Brown’s staf mentoring program: We will expand the program launched for new employees in 2015 that pairs entry-​to mid-​level employees with higher-​level employees in a mentoring relationship with a goal of fostering professional development and career growth at Brown. • Continue implementation of the Leadership Certifcation Program: Launched in 2015, this program requires leadership certifcation for all newly hired and promoted managers in grades 9 through 12. Tese employees must complete a series of modules designed to

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enhance management skills in a variety of areas, including hiring and developing staf, valuing diferences, and managing performance.

II. ACADEMIC EXCELLENCE Academic excellence in the context of diversity and inclusion means three things: (1) creating a learning environment in which students from all backgrounds—​defned according to race, ethnicity, nationality, income, frst-​generation status, gender identity, sexual orientation, disability status, veteran status, religious and political views, and other characteristics—​can thrive in their chosen felds of study; (2) providing scholarly resources to support education and leading-​edge research on issues of diversity, social justice, power, and privilege around the globe, both in the present and throughout history, especially for those departments that have long been committed to promoting this work; and (3) sustaining the University’s longstanding commitment to the highest standards of research and teaching while leveraging scholarly resources to grow the University’s national and global imprint as a standard-​bearer of academic excellence. Te actions outlined here will further these goals. To strengthen the broader learning environment, we will: • Expand the Center for the Study of Race and Ethnicity in America (CSREA) and the Center for the Study of Slavery and Justice (CSSJ): Tese centers are already vital sources of interdisciplinary scholarship on issues related to structural racism and social justice. CSREA was established in 1986 as one of the nation’s earliest academic centers devoted to race and ethnicity. CSSJ was established in 2012-​13 in response to a recommendation Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

from the report of the Steering Committee on Slavery and Justice. Both engage faculty and students from a wide range of departments across campus. Both have already been identifed as priorities for fundraising in Brown’s comprehensive campaign, with the goal of raising $10 million for each. Within the next year, CSREA will be relocated to a larger space at the center of campus. • Launch a Native American and Indigenous Peoples Initiative: Brown has extensive scholarly resources in Native and Indigenous studies in such departments as American and Ethnic Studies, History, and Anthropology, as well as in the Hafenrefer Museum, the John Carter Brown Library, and the John Hay Library. To build on these resources and recruit new faculty and postdocs who work on Native and Indigenous issues, we will work to become the academic leader in this area. A planning committee, coordinated by the Ofce of the Provost, has begun planning this initiative and expects to have an initial set of proposals by the end of the spring 2016 semester. As a part of this initiative, we intend to develop a Native American student program.

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• Incorporate issues of race, ethnicity, racialization, immigration, and identity into the integrative themes: We will ask academic leaders of the integrative themes discussed in the University’s strategic plan and accompanying operational plan to ensure that their research and teaching programs include components related to these core issues in ways that are appropriate to the subject matter. • Assess hiring needs in alignment with teaching demands: To meet the demand for courses and for advising on race, ethnicity, power, privilege, and identity in contemporary and historical contexts, we will support requests for faculty hiring in these areas, including incremental growth positions in departments that demonstrate growing demand. Brown already has a well-​established process to solicit and evaluate faculty-​hiring requests every spring. Tis process will guide all future requests for faculty hiring and growth of departmental faculty rosters. • Support other centers of scholarship: Te University will support other research centers—​such as the Cogut Center for the Humanities, the Pembroke Center for Teaching and Research on Women, the Population Studies and Training Center, the Political Teory Project, and the Watson Institute for International and Public Afairs—​as they develop plans to strengthen scholarship on race, ethnicity, and immigration; sustain an academic environment that values intellectual pluralism; and increase the diversity of backgrounds, experiences and views of their faculty and postdoctoral fellow cohorts. Many of these centers are already included in BrownTogether, Brown’s comprehensive campaign. • Create seed funds: Te Ofce of Institutional Diversity and Inclusion (OIDI) will institute a seed fund, available to faculty, students, and departments for programming and research on race and ethnicity.

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III. CURRICULUM Te heart of the University is its curriculum. Building on some recent innovations, we will: • Expand programs to catalyze achievement among students of color in the sciences: We are committed to expanding Catalyst, our pre-​orientation program for underrepresented undergraduates in the STEM felds. Te expanded program will also have targeted outreach to students in Computer Science through a new program titled Mosaic+. Te New Scientist Program will continue to pair STEM students of color with undergraduate mentors throughout the academic year as a way to enhance mentoring, tutoring, and community-​ building for underrepresented students in these felds. • Double the number of frst-​year and sophomore seminars related to issues of power, privilege, inequality, and social justice: Brown’s frst-​year seminars are a long-​standing feature of the curriculum, and sophomore seminars were added two years ago as part of

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Building on Distinction. As the number of faculty and postdocs who conduct research and teach on these issues grows, we will expand the number of seminars ofered. • Continue to expand the BrownConnect and UTRA programs: Te BrownConnect alumni mentoring and internship initiative and the UTRA program (Undergraduate Teaching and Research Awards) already provide fnancial assistance for low-​income students to undertake valuable work in the summer. Our goal is to ensure that all students are able to undertake at least one of these experiences, with appropriate fnancial assistance. • Establish a committee to implement curriculum reform: In 2002, a University committee examined how the Brown curriculum could be altered so that students would have the “means not only to understand the complex dynamics of social inequity, exclusion, and diference but also to do something with what they learn.” Tis discussion resulted in the Diverse Perspectives in Liberal Learning (DPLL) designation for courses, as well as various other proposals for “moving diversity-​related intellectual questions to the center of the curriculum.” We will reassess whether the DPLL designation and the other initiatives in the 2002 proposal have served their intended purpose. In spring 2016, the Dean of College will form a committee consisting of faculty, graduate students, undergraduates, and administrators to consider whether to establish more robust opportunities and mechanisms for encouraging Brown students to engage intellectually with questions of diversity and inclusion. Tese questions will also be discussed at the University’s College Curriculum Committee (CCC). • Provide seed funding for curriculum development: OIDI will provide seed funding to support critical scholarship and curriculum development on race, ethnicity, gender identity,

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sexual orientation, disability status, inequality, and other related areas of inquiry.

IV. COMMUNITY Members of our community must be free from the experience or threat of harassment and intimidation on the basis of race, class, ethnicity, sexual orientation, political orientation, nationality, religion, veteran status, gender identity, or disability status. However, we aspire to do more than assure merely this. We aim to create a com-​munity that works actively to counteract inequity and injustice and that promotes, among all our students, an attitude of mutual respect for the uncomfortable, uneven history we all share. To accomplish this, we will: • Establish a center for frst-​generation students: Student advocacy and initiatives over the past few years have culminated in work by the Dean of the College during fall 2015 to create a new center that will provide frst-​generation students with coordinated access to resources and serve as a home for student-​led initiatives. We will hire a graduate student coordinator in spring 2016 to oversee the center under the supervision of the Ofce of the Dean of the

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College and the Ofce of Campus Life. Te new center will be located in the renovated Sciences Library and is scheduled to open in summer 2016. • Support critical living and learning expenses for low-​income undergraduate students: Even with fnancial aid, many low-​income domestic and international students require additional fnancial assistance for such essentials as health insurance, trips home for family emergencies, laptops, and books, and access to dining and housing for those who remain on campus during school breaks. By the beginning of the 2016-​17 academic year, we will double the amount of funding available through the Ofce of Campus Life’s Emergency Fund, extend dining opportunities during breaks, provide all students in need with access to health insurance, and, by the end of the academic year 2015-​16, hire a full-​time dean dedicated to working with and supporting frst-​generation and low-​income undergraduate and graduate students. • Improve mental health services: Low-​income undergraduate and graduate students and students who cannot turn to their families to fund private sessions with a therapist or psychologist should not be lef without options for mental health services. In addition to increased funding available through the Ofce of Campus Life’s Emergency Fund for ongoing care in the community, Counseling and Psychological Services (CAPS) will eliminate the restriction to seven appointments by the 2017-​18 academic year. To meet existing student needs, the University has already increased the number of CAPS professionals. Tis increase in CAPS staf, plus other changes in current practices, should eliminate wait time for appointments. In collaboration with our hospital and physician group partners, the University is also exploring additional options for providing cost-​efective community mental health services for our students. • Diversify CAPS staf: We will provide necessary levels of culturally conscious, licensed, Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

and confdential counseling services through Counseling and Psychological Services. • Expand resources for centers that support students from diverse communities: Tree important centers on campus—​the Brown Center for Students of Color, the Sarah Doyle Women’s Center, and the LGBTQ Center—​serve a vital role in supporting and empowering undergraduate and graduate students. It is clear that these centers require additional resources. Te University commits to adding two new staf positions to support the work of these centers in 2016-​17. In consultation with students and staf, the new Vice President for Campus Life and Student Services will conduct an assessment of needs and resources across all of these centers during the summer and fall of 2016. Based on this assessment, we will determine what additional resources are required and where they should be located across these diferent centers. • Expand mentoring programs: Brown currently has a set of mentoring programs, including the ALANA Mentoring Program for students of color and the Renn Mentoring Program for LGBTQ+ students. We will expand mentoring resources for students of color, LGBTQ+ students, and frst-​generation college students by increasing connections among alumni, graduate students, and undergraduate students, and by using as a model current programs

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that match Brown students with alumni who provide life and career advice. We will also work with the Graduate School to provide mentoring programs for graduate students to support career development and academic training. • Develop professional development programming: We will provide a menu of professional development opportunities for all members of our community. In keeping with Brown’s culture of an open curriculum and unfettered scholarly inquiry, these lectures, workshops, discussions, and activities will not be mandated but rather ofered broadly and regularly so that everyone will have an opportunity to participate. Extensive research on mandatory versus voluntary “diversity training” has found that a voluntary approach is more efective in promoting diversity and inclusion than mandatory training. We will expect critical leaders in our community (senior administrators, deans, department chairs, center and institute directors, directors of undergraduate and graduate studies, advisors) as well as staf and faculty members to engage in professional development. All new student orientation and pre-​orientation programs will also include similar workshops. It is our hope that all members of our community will participate in one or more of these professional development opportunities. We will expect departments and other units to report annually on the participation of their community members in relevant professional development activities as part of their Departmental Diversity and Inclusion Action Plans (DDIAPs). Where appropriate, lecture and presentations will be videotaped and made available to the public online and advertised to alumni and members of the Brown Corporation. • Establish a Diversity and Inclusion Collective: Te Ofce of Institutional Diversity and Inclusion (OIDI) will coordinate the development and implementation of professional development programs. To build in-​house capacity to meet the demands for professional development, OIDI will develop the Brown University Diversity and Inclusion Professional Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

Development Collective (D&I Collective). Te D&I Collective will be an in-​house group of administrators, staf, faculty, and student employees who will serve both as trainers and consultants. We will provide support in the form of postdoctoral fellowships, graduate fellowships, and undergraduate assistantships, and we will also provide “release time” for staf members with this expertise so they can participate without adding this additional work to their existing responsibilities. • Focus on training for the Department of Public Safety: We will pay special attention to the ongoing training of members of the Department of Public Safety. Te role of this department in protecting the safety and security of the campus is vitally important. Te Department, which is nationally accredited, has made concerted and successful eforts to diversify its members at all levels, and all its ofcers participate in intensive, annual, and mandatory training on a wide variety of topics, including diversity and inclusion. Te Department is equally committed toward continuous improvement. Toward that end the Department will work intensively this spring with OIDI leadership and others to assess and improve the diversity and sensitivity training for all ofcers. Additionally, the Public Safety

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Oversight Committee, a standing committee of students, faculty, and staf, is charged with overseeing the Department’s policies and practices. Tis committee is currently engaged in an assessment to review current policies and training practices—​including practices that have raised concerns among some members of the community. Tese assessments will be completed this 2015-​16 academic year. Te Department will enhance its community outreach and community relations program by appointing a Community Liaison Ofcer to work directly with students and other community members to help resolve concerns about campus safety and the Department. • Promote the University’s positive impact on Providence and the surrounding region: Te University is signifcantly engaged in the local community through programming ofered by several centers and departments at the University, as well as through the Medical School and the School of Public Health. We will broaden awareness of eforts being undertaken through such Brown centers and institutes as the Swearer Center for Public Service, the Annenberg Institute for School Reform, and the John Nicholas Brown Center for Public Humanities, and through the summer pre-​college programs ofered by the School of Professional Studies. A number of these programs are described in Appendix G. • Convene a working group to evaluate and report on Brown’s contributions to Providence and Rhode Island: Te Ofce of Government Relations and Community Afairs will lead this group in partnership with campus and community leaders.

V.  KNOWLEDGE As a benchmark against which to measure progress, we must pursue more robust and extensive Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

data collection to supplement existing data. To collect these additional data, we will:

• Improve data collection: We will clearly defne and delineate who is included as a member of a historically underrepresented group (HUG), based on an intersectional framework and in the context of various disciplinary areas and felds. Te work outlined in this plan places heavy emphasis on increasing the African American/​Black, Latinx, and Native American and Indigenous populations at Brown because scholars from these groups have continued to be largely underrepresented across the academy. However, we recognize that there is also underrepresentation of other groups in various parts of the University. For example, East and South Asians are not underrepresented in STEM felds, but they are underrepresented in non-​STEM felds. On the other hand, women are underrepresented in STEM felds. To address this work more systematically, we will disaggregate data to more clearly show where HUG faculty and staf positions are needed. Additionally, we will establish an independent data committee within OIDI composed of faculty, staf, and students, which will

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be charged with developing policies for data collection on race, ethnicity, and nationality for faculty, students, and staf. • Conduct a university-​wide campus climate study: To establish a baseline assessment of the current campus climate and to track progress annually so that we can assess the effectiveness of the various initiatives outlined in this plan, we must collect systematic data. Tis spring and summer, the Ofce of Institutional Research (OIR) will release a series of microsurveys to undergraduates, graduate students, medical students, faculty, staf, and parents through a number of existing mechanisms (i.e., embedded within already planned surveys, such as the Senior Survey, Enrolled Student Survey, Graduate Student Survey, Faculty COACHE Survey) and will release new microsurveys for other populations not captured by existing surveys. Te goal is to repeat these microsurveys on an annual basis. Te Ofce of Institutional Research will develop a dashboard of existing climate data to serve as a benchmark against which to compare the results of the microsurveys. Depending on what we learn, we will explore launching a larger scale survey to the Brown community in fall 2016. We will also systematize data collection from exit interviews with faculty who decide to leave Brown so we can better understand faculty retention. VI.  ACCOUNTABILITY Responsibility for efecting change rests with all members of our community—​the Brown Corporation, administrators, faculty, staf, students, and alumni. Along with responsibility comes the need for accountability. Te following actions will ensure that the steps described here are carried out. We are committed to preventing mistakes of the past that have muted the success of

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earlier diversity and inclusion initiatives: • Feature the fndings of the “Report of Brown University Steering Committee on Slavery and Justice” on the University website: Te sections on Brown’s history will include substantive references to the institution’s past and to Brown’s commitment to restorative justice. In addition, a link will be provided to the report itself in the menu navigation of the page titled “About Brown.” All incoming students will be asked to read the report. • Improve Title VI communications: We will provide clear language on the OIDI website on how faculty, students, and staf should report potential Title VI violations. We will also assess over the course of the 2016-​17 academic year whether Title VI oversight (currently decentralized across the Ofce of Human Resources, the Ofce of Student Life, and OIDI) should be consolidated under OIDI. During spring 2016, OIDI will also develop workshops for faculty and staf on how to aid students that experience bias and exclusion. • Create departmental plans for diversity and inclusion: By the end of the 2015-​16 academic year, each academic, administrative, and student-​facing department and center will

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develop multiyear plans for diversity and inclusion. As noted above, we will ask academic leaders of integrative themes to do the same. Tese plans will establish each department’s goals on faculty and student diversity as well as the department’s contributions towards the creation of an inclusive environment on campus. Te Provost, the relevant Dean or Vice President, and the Diversity and Inclusion Oversight Board (described below) will review these plans annually. For academic units, these plans, developed by a committee that includes faculty and students, will inform search approvals and be included as part of external reviews. Te OIDI will assist in the creation of these plans and will ensure that they are accessible to the Brown community on its website. • Incorporate progress on diversity in external reviews: Te regular external review processes of academic departments will include an assessment of progress that departments have made on their diversity goals. • Strengthen and streamline oversight of diversity and inclusion initiatives: In spring 2016, we will form a Diversity and Inclusion Oversight Board (DIOB) co-​chaired by the Vice President for Academic Development, Diversity, and Inclusion as well as by a faculty member. Te DIOB will review annually the progress of departments and schools on their DDIAPs. Afer reviewing data on diversity and inclusion, the DIOB will make recommendations on changes in data collection to the Provost; will prepare an annual progress report on the Diversity and Inclusion Action Plan (DIAP); and will communicate this progress to the Brown community through written materials and forums. Te Corporation will review the DIOB’s report annually. Appendix E outlines the governance structure and oversight responsibilities of the DIOB. • Expand resources for the Ofce of Institutional Diversity and Inclusion: Te University has allocated funding for a new position in OIDI. Tis Director of University Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

Inclusion Programs will assist in the development of departmental diversity action plans and other programs described in this report. Te Director will also facilitate the work of creating inclusive practices in faculty hiring, curricular development, pedagogy, mentoring and support, and community engagement. Tis new director position is in addition to the postdoctoral fellow, the graduate student fellows, and the undergraduate interns described previously in this plan. Tis additional stafng will enhance the capacity of the OIDI to fulfll its mission. CONCLUSION Tis plan recognizes that success in creating a diverse and inclusive Brown calls on the entire campus community to contribute to creating a successful academic community that embodies the social and intellectual diversity of the world. Tis is central to the University’s aspirations for achieving the highest level of academic excellence. Te actions in this plan will help Brown fulfll its promise.

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However, the actions above represent only the latest eforts in Brown’s commitment to fostering an inclusive and safe environment for all members of our community. Brown already has in place a set of policies and processes to investigate and address incidents of harassment and intimidation.1 Hostile actions toward any members of our community, irrespective of their race, ethnicity, sexual orientation, socio-​economic background, and gender identity, will not be tolerated. Brown is committed to the thorough, fair, and transparent enforcement of these policies and processes.

Notes 1. Tese policies and processes can be found at: https://​www.brown.edu/​about/​administration/​institutional-​diversity/​reports-​and-​policies.

Appendix B Summary of Community Input 1.  Introduction On November 19, 2015, President Christina Paxson shared with the Brown community a working draf of Pathways to Diversity and Inclusion: An Action Plan for Brown University (DIAP). She invited students, faculty, and staf to share their input through an online form. Te online form closed on January 8, 2016, collecting a total of 162 submissions. In addition, the President, Provost, and other senior administrators received several email responses to the plan from various groups of students, faculty, staf, and alumni, as well as from departments and numerous other

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individuals. In parallel to this process, senior leadership also convened a number of open forums with various community groups from within and outside the University (i.e., faculty, students, staf, and the Providence community) to solicit input and questions on the proposals outlined in the plan. Tis appendix to the DIAP provides a high-​level summary of the feedback received through these various channels and highlights the ways in which the University addressed campus input in the revised Pathways to Diversity and Inclusion and the plans for its implementation. Te Campus Input section of the DIAP website has a detailed summary of input —​listed in the form of proposals—​shared during the feedback process. Analysis of the community’s input reveals a rich, substantive conversation centered on issues of diversity and inclusion. Te comments from students, staf, faculty, alumni, and members of the Providence community provided important suggestions for how to improve the working document. Tey also highlighted the deep commitment that members of the Brown community have to making our campus truly diverse and inclusive. Equally striking, the input and recommendations we received on the plan underscored the strong desire from members of the community, no matter their afliation or graduation year, to engage in this important conversation and to be engaged in the process of fnalizing this plan and implementing it in the months and years to come.

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2. Process Summary Feedback from the Brown community included 162 online submissions and 35 emails. Te last section of this appendix provides an overview of the diferent forums and sources of written commentary that also contributed to the plan. Te input came in the form of comments on, and amendments to, the draf DIAP; specifc edits; requests for clarity or more explicit detail on specifc aspects of the draf; and new proposals. Te Ofce of the Provost reviewed every submission received through the channels outlined above and collected them in a data-​base. Each submission was categorized into one of several thematic areas and then further refned by subcategories to identify similarities and trends. In many cases, an individual or group’s comments that touched upon several points were disaggregated into multiple individual submissions. In aggregate, submissions from all sources translated into more than 720 comments, anecdotes, new proposals, and edits to the original draf.

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3.  Category Summaries (in order of frequency)

Tis section summarizes the 20 most frequent categories of feedback and shares how key proposals made in each were considered in the context of revising the DIAP. In some cases, language in the fnal plan was revised to refect suggestions made by the community. In others, suggestions refected proposals that were already addressed in the DIAP or that Brown has been working on for quite some time. Tese comments remind us of our need to better communicate this work to the community. In certain cases, we received proposals, which, while important, are not within the scope of the current DIAP. Te assessment of these proposals will be shared with relevant parties to ensure they are addressed in future plans. Edits on the November 19 draf and comments about implementing the DIAP are addressed in the fnal plan. Tese edits and comments are refected in the full list of all proposals posted on the Campus Input section of the DIAP website.1 Support Services for Students (125 comments)

Te largest number of comments focused on the needs of diferent groups of students within the Brown community. Te feedback highlighted the challenges facing international, frst-​g eneration, refugee, and undocumented students who struggle to overcome cultural, economic, linguistic, and academic barriers in unfamiliar settings. Tey also highlighted the difculties these students ofen face when trying to understand fnancial aid, health insurance, or other basic support services. Comments from graduate and medical students focused on the pressures of balancing family life and childcare with the demands of coursework, lab

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work, and research. Faculty noted that many graduate students, especially those studying in STEM felds (Science, Technology, Engineering, and Mathematics), need additional tutoring and advising, which can add to an already crushing workload. Undergraduate and graduate students from historically underrepresented groups face many of these same challenges while experiencing trauma from repeated discrimination and a lack of awareness by fellow students, faculty, and staf at Brown. Tese students reported that forms of oppression they face can negatively afect their grades, campus engagement, and health and wellness. Numerous comments also spoke to the distinct needs of students with disabilities or with veteran status, or those who arrive on campus from low-​income backgrounds or from diferent religions and cultures. What became clear from this feedback is that, while many support services for these diferent groups of students already exist at Brown, they are not sufcient. Requests for more resources, through increased funding and additional staf, to better meet the needs of our diverse student community, were a frequent theme among the comments we received. Te November 19, 2015, draf of the DIAP began to address these needs through investments in such key identity centers as the Brown Center for Students of Color (BCSC), the LGBTQ Center, and the Sarah Doyle Women’s Center. Te fnal Pathways to Diversity and Inclusion plan expands this support to Counseling and Psychological Services (CAPS) and to mentoring programs for undergraduate and graduate students across the University. Brown is already launching a First Generation Center to promote greater on-​campus support and programming for this community, as well as an International Advisory Board—​comprising senior administrators, faculty, staf, and students—​to address the needs of international students, staf, and visitors to our campus. Tis year, we have also invested signifcant resources in providing both greater support services for low-​income students and greater benefts for graduate students. Te University will also invest in resources that engage our alumni to provide mentorship and professional-​development opportunities in the form of internships and jobs. Tese important investments will seek to address many of the challenges outlined above. To move this work forward, the new Vice President for Campus Life and Student Services will, in consultation with students and staf, conduct an assessment of needs and resources across all these centers during the summer and fall of 2016. Based on this assessment, the University will determine what additional resources are required and where they should be located to best support our student community.

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Faculty Hiring and Departmental DIAPs (98 comments)

Members of the Brown community contributed signifcant input in the form of questions, comments, and new proposals to improve hiring practices, accelerate the timeline for doubling faculty from historically underrepresented groups, develop a more expansive view of faculty diversity, and provide better mechanisms to address pipeline and retention issues. Calls to engage students (both undergraduates and graduates) in faculty hiring committees emphasized making the hiring process more transparent and engaging these important stakeholders more directly in the process of identifying their future teachers, advisors, and mentors. Departments asked for administrative guidance and support, perhaps through the Ofce of the Dean of the Faculty, to coordinate cluster hires across departments and across disciplines. Tere were several suggestions to improve the pipeline of faculty from Historically Underrepresented Groups (HUGs), including the use of the Target of Opportunity program to hire faculty members at the associate, assistant, and research professor ranks, and to leverage post-​doctoral positions for hires into tenure track positions. Refecting a broader conversation on how we defne diversity and inclusion, students and faculty alike called for faculty hires that refect the racial, ethnic, disability status, gender, sexual orientation, and intellectual pluralism Brown hopes to achieve through the implementation of the DIAP. Echoing this ambition were calls to hire more diverse faculty in STEM felds, in the Alpert Medical School, in the School of Public Health, and across departments at Brown. Tis was in addition to proposals to hire faculty specifcally in Africana Studies, Disability Studies, Environmental Studies, South Asian Studies, Middle East/​South West Asia and North Africa (SWANA) studies, Latinx Studies, Urban Studies, Visual Arts, Indigenous and Native People Studies, and Environmental Justice. All these comments and suggestions underscore the considerable interest and support for diversifying the faculty, although more clarity is needed on the processes for achieving this goal. Revisions to the fnal DIAP include additional details on process. It specifes, for example, that requests for faculty searches will be allowed only for departments that have approved Departmental Diversity and Inclusion Action Plans (DDIAPs). Te DIAP also confrms the idea that increasing faculty diversity will come from a combination of hiring faculty into existing open positions and creating new faculty growth lines that support the strategic goal of increasing academic excellence through investments in the thematic areas outlined in Building on Distinction. For example, we plan to create endowed professorships (both junior and senior) to support faculty who are models of excellence in researching issues of diversity, social justice, power, and privilege around the globe. Building on the success of cluster hiring in the

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sciences, the DIAP outlines plans to encourage cluster hiring in the social sciences and humanities, and calls for the appointment of an associate dean to support this work. Although the original DIAP stated a goal for doubling the number of HUG faculty over 10 years, we have accelerated our timeline and now plan 60 new hires by 2022. To support the work of departments in developing DDIAPs, we are establishing a number of graduate fellowships in the Ofce of Institutional Diversity and Inclusion (OIDI) that will be used to recruit and compensate students with existing experience and expertise. For these students, who will work with individual departments on DDIAPs and hiring strategies, these fellowships will replace teaching assistant responsibilities. In addition a number of part-​time undergraduate interns will be hired to support this work.

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Curriculum (64 comments)

Related to the conversation around faculty hiring was feedback from the community highlighting a desire for increased course oferings in several substantive felds, as well as calls for new academic programs and departments to refect and reinforce campus diversity and inclusion. For example, a relative majority of comments focused on the paucity of courses on Africa, including African languages (such as Swahili, Yoruba, Igbo, Twi, Shona, Berber, and Hausa), and African history, culture, politics, policy, and theory. To address this gap in current course oferings, there were proposals to create an African Studies department, and to improve study abroad opportunities to Africa. Te University is making important strides in diversifying research and course oferings. For example, Brown has recently hired 12 new faculty members to work on Africa across the departments of anthropology, history, political science, economics, comparative literature, Egyptology and Assyriology, and the History of Arts and Architecture. We have also approved additional funding for the Africa Initiative at the Watson Institute, and will provide curriculum development funds to enable departments to develop new courses and academic programming on race and ethnicity. Revisions incorporated into the fnal DIAP outline plans to expand the Center for the Study of Race and Ethnicity in America (CSREA) and the Center for the Study of Slavery and Justice (CSSJ). Te fnal DIAP also confrms additional support for such research centers as the Cogut Center for the Humanities, the Pembroke Center for Teaching and Research on Women, the Population Studies & Training Center, and the Watson Institute for International and Public Afairs. Tis support will serve to devote greater attention to scholarship on race, ethnicity and immigration and to bring to Brown a more diverse and inclusive body of scholars and postdoctoral fellows.

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Echoing proposals outlined in the draf version of the DIAP, another important thread of discussion focused on increasing the number of courses related to issues of power, inequality, diversity, and social justice. For example, feedback around curricular diversity included questions on the efectiveness of sophomore seminars; a suggestion for a Diverse Perspectives in Liberal Learning (DPLL) requirement for graduation (akin to the existing Writing-​Designated Course, or WRIT, requirement); a proposal for a program to facilitate and incentivize teaching to promote diversity components in STEM courses; and a suggestion for a required diversity component within every course. Looking ahead, the Committee on Curriculum Reform, led by the Dean of the College and composed of faculty, undergraduate students, and administrators, will address these and other proposals in spring 2016. In addition, seed funding from the OIDI will provide support for critical scholarship and curriculum development on race, ethnicity, gender identity, sexual orientation, disability status, translational, and other related areas of inquiry. Departments like Africana Studies, which has long been focusing on teaching and scholarship related to race and social justice, serve as important exemplars for how to make the curriculum more diverse and inclusive.

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Defning and Recruiting for Diversity (146 comments)

Feedback on how we defne diversity and inclusiveness speaks to the very core of the work outlined in the plan. Tere were several calls for a more expansive view of inclusion that acknowledges the identities of members of our community defned by race, ethnicity, religious beliefs, ideological views, gender, sexual orientation, disability status, veteran-​status, and income. Staf members and student athletes wrote and asked to be represented in the plan. Tey expressed ofen feeling invisible and isolated from campus life. In a separate but related category of comments, members of the community provided important suggestions for how we defne and use terms like “HUGs,” “minority,” “underrepresented minority,” “students of color,” etc. Whether to include Asians (and subgroups within the Asian population at Brown), SWANA students, indigenous and native students—​or even veteran-​status, disability status, and religious identity students—​within these categories raises important considerations about whom we include and how we count them in our eforts to promote greater diversity and inclusion. A related set of comments called for disaggregated data on many of these groups (Asian Americans being a frequent reference) among students, staf, and faculty. Students expressed interest in being involved in the collection and analyses of these data in order to tap into their expertise and promote greater transparency and standards in data collection and reporting. While reporting and accreditation

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bodies regulate much of the data we currently collect, we agree that collecting more detailed data in parallel will help with the target setting, support mechanisms, and policies outlined in the plan. Finally, proposals related to the admissions process at Brown ofered an alternative pathway to making the campus more inclusive. Community feedback called for pipeline programs and funding to increase matriculation of undocumented, low-​ income, frst-​generation, minority, and local Providence applicants to Brown. To create pipelines into advanced graduate study, and propel more students of color into doctoral programs, several proposals called for increasing student fellowships for terminal masters programs. Comments from the medical school community focused on adapting such existing matriculation pathways as the Program in Liberal Medical Education (PLME), the post-​baccalaureate linkage programs, and the early identifcation programs to target underrepresented groups. Te proposals outlined in both the original and revised DIAP underscore the importance of making the campus as inclusive as possible to all students, faculty, and staf regardless of race, ethnicity, gender identity, sexual orientation, religion, veteran status, political orientation, socio-​economic class, or disability status. Investing in identity centers to allow them to provide greater support services will help to move this work forward. Similarly, we will work with existing centers and programs across the University to ensure that every member of the community is in the best position to succeed. At the same time, we place heavy emphasis in this plan on recruiting those who self-​identify as American Indian, Alaskan Native, African American, Hispanic or Latinx, and Native Hawaiian and/​or Pacifc Islander. Tese groups, identifed in this document as Historically Underrepresented Groups (HUGs), as well as women in STEM and Asian American and Pacifc Islanders (AAPI) in the humanities and social sciences, have been identifed by the U.S. Department of Education as groups that continue to have limited participation at the graduate and faculty levels at colleges and universities. To promote this work at the graduate level, the DIAP includes plans to create 25 new graduate student fellowships; direct more resources, including staf, to support research, training, and mentoring for HUG graduate students; and create research opportunities to attract undergraduates from HUGs to pursue advanced graduate study. For undergraduates, we will increase funding for such important programs as Summer@Brown and A Day on College Hill (ADOCH), among other initiatives outlined in the revised plan. Finally, as outlined in the revised plan, we will establish an independent data committee within OIDI to track progress on this work over time. As we make progress on these fronts, we hope, and expect, to refocus our strategy to recruit other groups in an efort to continually make Brown more diverse and inclusive.

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Professional Development/​Training (46 comments)

Te need for professional development/​training programs to promote cultural competency and foster a safe learning environment for all students, staf, faculty, and administrators at Brown, particularly those with marginalized identities, was an important area of focus in the feedback we received. Comments on training primarily focused on two dimensions: 1) whether professional training should be mandatory or voluntary; and 2) what substantive material should be included in these training modules. For example, numerous proposals highlighted the importance of establishing training modules based on an intersectional, anti-​oppression framework that recognizes various forms of diversity and identity (such as racial identity, gender identity, sexual orientation, class, disability status, and religious identity). Tere were also numerous calls for more resources to help departments, staf, faculty, and students prepare these professional development programs. To address this feedback, the University will provide a menu of professional development opportunities that will not only build on our existing expertise and resources, but that will also signifcantly expand our eforts to ofer these programs and activities to all members of our community. In keeping with the importance of an open curriculum and unfettered scholarly inquiry to Brown’s culture, the array of lectures, workshops, discussions, and activities will not be mandated but rather will be ofered broadly and regularly so that everyone will have an opportunity to participate in these activities at many diferent levels. Extensive research on mandatory versus voluntary “diversity training” indicates that voluntary opportunities have been found to be more efective in promoting diversity and inclusion. Tat said, the fnal Pathways to Diversity and Inclusion plan is responsive to proposals that Brown should identify key groups that should be the focus of training. Te plan provides specifcity about how the professional development will be ofered to students, faculty, staf and senior administrators. It is our hope that all members of our community will participate in one or more of these professional development activities. Te Ofce of Institutional Diversity and Inclusion (OIDI) will provide overall coordination for the development and implementation of programs, workshops, tools, resources, and other related support materials. Te DIAP outlines how OIDI will build capacity to meet the demands for professional development with the creation of the Brown University Diversity and Inclusion Professional Development Collective (D&I Collective). Te D&I Collective will be an in-​house group of consultants who will serve both as master trainers and consultants and who will also review and assess programs, resources, and other materials. For example, we will provide funding for one postdoctoral fellow, three graduate fellowships, and three

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undergraduate student assistantships. We will also provide “release time” for staf members with this expertise so that they can participate in these modules without adding this additional work to their existing responsibilities.

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Improving Accountability and Responsiveness (44 comments)

Feedback from the community also included a number of proposals to promote a campus climate of responsiveness, transparency, and accountability. Many comments called for greater transparency and engagement in the development of the plan and departmental DDIAPs. Others raised the possibility of implementing criteria and metrics to assess faculty members’ history of service, mentorship, and/​ or scholarship on race, social justice, diversity, and inclusion for tenure/​promotion review. Tere were also calls for clearer mechanisms to allow students, staf, and faculty to fle diversity-​and-​inclusion-​related grievances and receive a timely response. Possible avenues for this could be a centralized administrative ofce or a formal Title VI Ofce. Wanting to be engaged in the main activities of the University, students in particular repeatedly expressed a desire to create student-​elected positions on the Corporation, to have regular meetings with the University Chancellor, and to form a body of graduate student representatives to serve on the Diversity & Inclusion Oversight Board (DIOB). To address these issues, the Diversity and Inclusion Oversight Board (DIOB) will be formed in spring 2016. Tis board will be charged with reviewing annually the progress of departments and schools on their DIAPs; reviewing data on diversity and inclusion, as well as making recommendations on changes in data collection to the President and Provost; preparing a public annual report on the quantitative and qualitative progress of the Diversity and Inclusion Action Plan that will be reviewed annually by the Brown Corporation; and communicating this progress to the Brown community through written materials and forums. Appendix E of the DIAP provides details on the governance and oversight responsibilities of the DIOB. It includes an explanation of eforts to strengthen accountability for diversity and inclusion initiatives by forming a small group of senior administrators who have ultimate responsibility for the implementation and success of the DIAP. Tis group will consist of the President, the Provost, the chair of the FEC, the VP for Campus Life and Student Services, the VP for Finance and Administration, the Dean of the Faculty, the Dean of the College, and the VP for Diversity and Inclusion. Te DIAP commits OIDI to providing clear language on its Web page on how faculty, students, and staf should report potential Title VI violations. We will assess over the course of this year whether Title VI oversight should be consolidated under OIDI.

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Community Engagement (33 comments)

Brown’s relationship with the Providence and Rhode Island communities—​ particularly with communities of color—​emerged as a concern throughout the feedback period. A  range of ideas proposed strengthening community engagement and promoting positive impact. Several suggestions called for Brown to invest in the local community through educational programs and resources that enhance K-​12 education, or by developing programs that ofer internships and employment opportunities for local residents. Te feedback received through this process is instructive about the need to both communicate better what is in place and to have a process for assessing, strengthening, and expanding these programs and their efects. Brown is already engaged in much of this work through the Swearer Center for Public Service, the Center for Public Humanities, and the Annenberg Institute for School Reform. Appendix G in the DIAP addresses the campus’ interest in ensuring that Brown is developing opportunities for community members in Providence to partner with members of the Brown community. It provides a detailed list of community-​facing programs—​Building Futures, Fund for the Education of the Children of Providence, Urban Education Fellows, College Advising Corps and TRI-​Lab, to name a sampling—​to address local challenges and strengthen the educational, economic, and social assets of our city, state, and region. To determine how we support these programs, and others, we will convene a working group, led by the Directors of Government and Community Afairs, the Swearer Center, and Annenberg, with campus and community leaders to evaluate Brown’s contributions to the city and state and to make recommendations for ensuring the University’s positive impact in ways that align with its mission. Staf Hiring (20 comments)

We received numerous comments focused on strategies to increase the diversity of our staf, especially in grade 8+ roles. Starting with a call for more data to understand the demographic distribution of staf by grades, proposals also suggested pipeline programs to recruit staf from historically underrepresented groups and evaluate the education requirements that the Ofce of Human Resources currently requires for managerial positions. Similar comments expressed a need for better management training on how to diversify and broaden hiring pools and how to improve interviewing techniques to make the hiring process at Brown more welcoming.

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Many existing programs and practices are already in place along these lines. Nevertheless, to address this feedback, Human Resources will establish a working group to identify ways to improve communication to the community regarding existing hiring practices, career pathways, and professional development programs. Among the programs already in place is a staf-​mentoring program we launched for new employees in 2015, a program we plan to expand in 2016 to include employees with two or more years of service at Brown. Tis program will pair entry to mid-​level employees with higher-​level staf members in a mentoring relationship that aims to foster professional development and career growth. We also launched a new Leadership Certifcation Program in 2015 that is required for all newly hired and promoted managers in grades nine through 12. Te program consists of a series of modules designed to enhance management skills in a variety of areas, including hiring and developing staf, valuing diferences, and managing performance.

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4. Next Steps

Tis memo provides a high-​level overview of some of the key areas of feedback that we received.2 Te revised Pathways to Diversity and Inclusion action plan establishes the concrete next steps that we, as a community, must take to make Brown more diverse and inclusive. While there is signifcant work to do in the coming months and years, we are inspired by the passion with which our community has actively participated in developing this plan, and we remain committed to partnering with our students, faculty, staf, and alumni, as well as with the Providence community, to realize the important goals that we have set forth. Community Forums & Group Feedback

Feedback from the Brown community of students, faculty, staf, and alumni resulted in 162 online submissions, 35 emails, and spirited discussions from the following forums with various community groups, including: • Faculty Meeting (December 1), 200 attendees • Undergraduate Council of Students Open Forum (December 1), 220+ attendees • Staf Open Forum (December 4), 200+ attendees • Academic Priorities Council (December 8) • Faculty Forum (December 9), 220 attendees • Faculty of Color Group (December 10)

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• Concerned Graduate Students of Color (CGSOC) Meeting (December 11) • Chairs and Center Directors Meeting (December 14) • Community Forum, hosted by Swearer Center (December 14) • Community Forum, hosted by the Swearer Center for Public Service, for local organizations working in areas such as education, community development, arts, disabilities, criminal justice, homelessness and health, and representatives from several agencies. • Te Swearer Center also established and widely distributed an open online feedback response form to gather input on the plan from individuals and community organizations. • Administrative Leadership Group (December 18) • Dining Staf Meetings on December 22 (130 attendees) and December 23 (80 attendees)

In addition to feedback from individual students, faculty, staf, alumni, and Corporation members, we received written input from the following: • Academic Departments & Schools: Departments of Anthropology, History, Ethnic Studies; School of Public Health; Warren Alpert Medical School’s Department of Psychiatry and Human Behavior; and Center for Alcohol and Addiction Studies • Centers & Institutes: Joukowsky Institute of Archaeology and the Ancient World, Center for Public Humanities, Swearer Center for Public Service, Annenberg Institute for School Reform, Ofce of the Chaplain and Religious Life • Student Groups: Brown Undergraduate Council of Students (UCS), Coalition of Concerned Graduate Students of Color and their Allies (CGSOC), Muslim Community & Brown Muslim Students Association, Students of the Warren Alpert Medical School,

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Community of People of Color (“Reading Out”) • Administrative Units: Dean of the College, Dining Services, Student and Employee Accessibility Services (SEAS) • Faculty Groups: Committee for Faculty Equity and Diversity (CFED) • Alumni: Inman Page Black Alumni Council (IPC), Asian/​Asian American Alumni Alliance (A4), Brown University Latino Alumni Council (BULAC), Brown Transgender Gay and Lesbian Alumni (TBGALA) • Providence Community: Trough the Swearer Center

Notes 1. https://​www.brown.edu/​about/​administration/​institutional-​diversity/​diversity-​plan. 2. A full list of proposals that were shared by the community can be found here: https://​brown. edu/​web/​documents/​diversity/​actionplan/​diap-​input.pdf.

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References

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Brown University Steering Committee on Slavery and Justice. (2007). Slavery and Justice. Providence, RI: Brown University. Cohen, Joshua. (2009). Philosophy, Politics, Democracy. Cambridge, MA:  Harvard University Press. Dobbin, Frank, and Alexandra Kalev. (2016). “Why Diversity Programs Fail—​And What Works Better.” Harvard Business Review 94, no. 7: 52–​60. Locke, Richard. (2013). Te Promise and Limits of Private Power Promoting Labor Standards in a Global Economy. New York: Cambridge University Press. Sabel, Charles F., and Jonathan Zeitlin. (2012). “Experimentalist Governance.” In Te Oxford Handbook of Governance, edited by David Levi-​Faur, 169–​83. Oxford:  Oxford University Press.

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Now let’s be clear, this problem is bigger than football. Tere has been, appropriately so, intense and widespread outrage following the release of the video showing what happened inside the elevator at the casino. But wouldn’t it be productive if this collective outrage, as my colleagues have said, could be channeled to truly hear and address the long-​sufering cries for help by so many women? And as they said, do something about it? Like an on-​going education of men about what healthy, respectful manhood is all about. Consider this: According to domestic violence experts, more than three women per day lose their lives at the hands of their partners. Tat means that since the night February 15th in Atlantic City [when the elevator incident occurred] more than 600 women have died. —​James Brown, CBS Sports, Tursday, September 11, 2014

6 Accountability in an Era of Celebrity Martha C. Nussbaum

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i On December 30, 2015, actor Bill Cosby was fnally charged with sexual assault.1 For anyone who has followed the case, one striking aspect is how late an actual indictment came, and afer a huge number of accusations. One legal problem has been the statute of limitations for rape, an issue by now much discussed. But another obvious aspect is the fact that as a society we have created a class of glamorous and powerful men—​entertainers, athletes—​who are in a most literal sense above the law. Tey will almost always prevail against all accusations, no matter what they do in the sexual domain, because they are shielded by glamor, public trust, and access to the best legal representation. And above all, because they make a lot of money for others. What I thought in 2016, reading the news, was, “For one Cosby, there are hundreds like him who will never be indicted.” As I write this, in March 2018, the case is lurching toward a second trial, afer a mistrial in the frst jury trial.2 Tat mistrial was in part a result of earlier legal victories, including the ruling that only one accuser other than the primary complainant was allowed to testify, even though the prosecution had planned to call thirteen women (out of the dozens who have told their stories publicly).3 Tis made it virtually impossible to show that an obsessive pattern of conduct—​drugging followed by rape—​ had been Cosby’s modus operandi for years. Te other women were prevented by the statute of limitations from bringing their own charges: Pennsylvania, where the trial took place, has a longer statute of limitations for rape than other states. Despite these setbacks, the district attorney did not drop the case, and in the second trial 151

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fve other women will be allowed to testify, suggesting that he may actually face accountability. Like countless women, I have my own Bill Cosby tale to tell, and I told it then and there, in January 2016, in the Hufngton Post, in order to make clear that the Cosby incident was no isolated phenomenon, but a part of the way our society has long worked.4 Here it is. In the winter of 1968, when I was an enterprising twenty-​ year-​old, I had a big crush on a well-​known actor who shortly became another of America’s beloved TV dads. He was a really good actor, and at that time he was playing a major stage role in New York. He was then around forty. Afer going out with him a couple of times, I asked him back to my of-​campus apartment. I had had some sexual experience, but not much; however, I decided to be daring, since it was the late ’60s and I felt that I should join the culture. Unlike the Cosby women, I certainly intended to consent to intercourse. What I did not consent to was the gruesome, violent, and painful assault that he substituted for intercourse. I remember screaming for help, to no avail, and I remember him saying, “It’s all part of sex.” I never seriously considered going to the police, even though there was a lot of forensic evidence. I  was just too embarrassed. I  didn’t even go to a doctor. And I thought, with good reason, that the police would dismiss the issue because I had afer all consented to some kind of sex act. Even now, the law is not well equipped to handle that type of case, since consent is usually understood to be an all-​or-​nothing matter, despite the fact that there is a world of diference between what I intended to consent to and what happened to me. I’ve taught rape law and read a large amount on this topic and have never found discussion of this question. Tis, at least, we can fx, with more nuanced accounts of legal consent in the case of violent practices. But the issue I want to focus on is that even had all these problems been solved, the celebrity in question would certainly have prevailed. He would have denied my allegations, cast aspersions on my reputation, even perhaps attempted to portray me as an extortionist. My life, personal and professional, would have been profoundly damaged, and nothing would have been accomplished. Not specifc deterrence, since I am sure he was undeterrable, shielded by fame as he was, and not general deterrence, since I would have failed. No doubt dozens of other women have come to the same conclusion about this particular man. And who knows how many hundreds or thousands, about how many hundreds of other male celebrities. So what did I do? Afer my injuries faded, I decided not to “join the culture.” I met a lovely man my own age, settled down into a monogamous life, married, and soon had a child. I was very lucky: I have never experienced any sexual trauma from the episode, and to this day I think it has afected me almost not at all, except that I never wanted to watch his TV show, which is not the type of show I would normally watch anyway. (Perhaps the episode also explains my strong interest in Law

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and Order SVU, my favorite show.) I’ve had a very happy life, in sexual and other respects. I observed the public enthusiasm for my assailant, as an icon of virtuous American fatherhood, with ironic detachment. Only thirty years later, when he ran for Congress, did I ever consider coming forward with my story, just to tell the story, since I thought it was preposterous that he should hold a position of public trust. But legal experts among my close friends assured me that nobody would believe me afer such a lapse of time, and he would be certain either to portray me as an extortionist or to sue me for defamation. (Te famous are indeed unusually exposed to extortion, and that vulnerability itself is an aspect of their impunity: everyone easily believes that this is what a complaining woman is afer.) I consoled myself with the fact that he was afer all a Democrat, running against an especially vapid Republican opponent. (He lost.) In the Hufngton Post I didn’t name him, because he was dead, and I wanted to make the point that this is a common phenomenon, not “about” this or that celebrity. But now I do: He was Ralph Waite, the frontier father on Te Waltons. Mine has been a selfsh and self-​protective response. I’ve done well, but perhaps even a futile complaint could have prevented other harms. By now, with the welcome outpouring of stories of women in the #MeToo movement, we know that other women made, at that time, similar choices, and so many, like me, want to make amends for silence by coming forward now to try to make things better for others. What I want to do in this chapter is to set this issue in a larger context before returning to the case of celebrity accountability. First I’ll give some facts about how women are doing around the world. Ten I’ll zero in on the unsolved problem of sexual violence. I’ll describe some real progress on even this thorny issue, both in law and in culture. But then we must return to the recalcitrant case of actors and especially sports stars, where big money still prevents full accountability.5

6.1 WOMEN’S PROGRESS Women are making progress.6 In 1893, New Zealand became the frst nation to ofer women the vote;7 in 2014, every nation of the world now gives women the vote:  even Saudi Arabia did so in 2015. In 1900, there was no female member in any national parliament; in 2013, according to the World Bank, the proportion of seats held by women was 21.77%, rapidly up from 12.74% in 1990.8 In educational enrollment and attainment, although some nations still show substantial gaps, women have basically closed the gap worldwide, coming up to parity with men in primary and secondary enrollment, and surpassing men in tertiary enrollment. Women’s

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labor force participation is also advancing, although it still lags behind men worldwide: 50.6% as contrasted with 76.7% for males.9 Although aging women and single female heads of households still exhibit a dramatically higher-​than-​average rate of poverty, women are on average slowly rising economically, so that their share of national poverty is around 50% in Europe, Latin America, and Africa. In the very basic area of life and health, we also see dramatic improvement. Women’s life expectancy at birth has climbed from 54 years in 1960 to 72 years in 2012, about the same increase that we see for men. Women now outlive men in virtually every country. Maternal and infant mortality are declining, though they are still severe problems. Women appear to enjoy nutritional status in childhood similar to that of males. We see few disparities in immunizations or rate of communicable diseases. Even HIV afects women and men equally. A lot of this progress comes from development and afuence. But women’s relative status has improved even in many nations that are still lagging behind in overall economic development. Tere are two especially recalcitrant issues. One is women’s burden of care work in the household. A vastly disproportionate amount of child care, elder care, and domestic labor is currently done, worldwide, by women. Te rare case is where the woman is hired and paid a wage; even such women are exploited, since the wage for work perceived as “women’s work” is not adequate. But a large proportion of such work is done for free by women, and they are supposed to do it out of love. Tis is just how things are. Tere are many issues here: the burden of the “double day,” the failure of economic accounting to count this work as work or to assign to it a monetary value, the consequent devaluation of women’s work in many contexts such as divorce or damage suits, and, I fear, even in international labor movements. But that is not my topic in this chapter. Te other exceedingly recalcitrant issue is sexual violence. According to the 2014 Human Development Report, about one-​third of the world’s women will experience sexual or other physical violence in their lifetime, usually from an intimate partner.10 Good data in this area are very hard to come by, but it is clear that the problem is not endemic to poorer nations, and that the rate in the United States is appallingly high, as I’ll describe later. Even on these issues, however, once highly controversial, or (worse) neglected as the way family life just is, there is an emerging international consensus that violence against women ought to be taken very seriously. Male business as usual is no longer business as usual. Rape, domestic violence, and sexual harassment still occur with depressing regularity, but they are publicly deplored as they were ofen not earlier; they are big news, when once they were just daily life. When Boko Haram kidnaps young women, this event, the sort of thing that has occurred for centuries without protest, is now the object of widespread international protest.

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Te (former) prime minister of Italy, Enrico Letta, shone a spotlight on the frequency of domestic violence, stalking, and killings motivated by male jealousy, saying that Italy is “at war against femicide”—​thus placing the crimes in a category comparable to that of genocide, as feminists have long since urged.11 He followed this up with new tough laws. Even in one of those still quite primitive and patriarchal nations, the United States, there is movement.12 For years rape on college campuses, fueled by alcohol abuse and the toxic atmosphere created by big-​time college sports, has gone virtually unreported, as complainants are routinely dissuaded from pursuing their complaints. In his last two years in ofce, President Obama—​actually led by (former) Vice President Biden, a long-​time feminist—​directed attention to this issue, launching a campaign against campus sexual assault and even publishing a list of ffy-​fve especially problematic institutions, on which, I am sorry to say, the University of Chicago fgures.13 And lately, wonder of wonders, the most all-​American institution of all, the National Football League (NFL), is writhing in distress afer a wave of domestic violence issues involving prominent players. Ray Rice is gone, a mere unsigned free agent. Other big-​name departures followed. And the heat is on: a dozen still-​active NFL players have domestic violence arrests, and there is mounting pressure on the league to discipline them, too.14 Of course it isn’t as if these things are new events:  it’s the climate of their reception—​from fans, from politicians,15 sports journalists, and, perhaps most important, from the league’s corporate sponsors16  —​that has undergone a virtual revolution. When you listen to Te Score (a typical sports talk station in Chicago) these days, it’s quite astonishing:  you might almost be at a 1980s feminist consciousness-​raising session run by Andrea Dworkin. Even beer has joined the women’s movement: on September 16, 2014, NFL corporate sponsor Anheuser Busch stated: “We are disappointed and increasingly concerned by the recent incidents that have overshadowed this NFL season. We are not yet satisfed with the league’s handling of behaviors that so clearly go against our own company culture and moral code.”17 Wow. Either staggering hypocrisy or revolutionary change. And in a sense even hypocrisy would itself be a revolutionary change, refecting deference to new social norms. All of this happened before #MeToo, so let’s not be confused. Tat movement has been enormously welcome and productive, as I’ll later detail, but we should not forget all those who prepared the way. One of my main aims in this chapter is to chronicle the work of working women and feminist lawyers over fve decades, so that we give credit where credit is due. Let me now briefy trace the evolution of law and social norms toward greater accountability, and then to show what still needs to be done.

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6.2  SEXUAL VIOLENCE IN THE UNITED STATES First let me describe the current dimensions of the problem.18 Te most recent National Intimate Partner and Sexual Violence Survey, published by the Centers for Disease Control and Prevention, puts the incidence of sexual violence even higher than previous studies.19 Nearly one in fve women surveyed said they had been raped or had experienced an attempted rape, and one in four reported having been beaten by an intimate partner. One in six women have been stalked. Sexual violence is, of course, not only toward women, but it afects women disproportionately. One-​third of women said they had been victims of some form of sexual assault. One in seven men have experienced sexual violence and one in 71 have been raped (usually when very young). More than half of female rape victims were raped by an intimate partner and 40% by an acquaintance. Nor are these numbers unconnected to traditional patriarchal attitudes: Edward Laumann, one of the great sociologists of our era, found some highly disturbing facts in his exhaustive survey of American sexual attitudes and experiences, published in Te Social Organization of Sexuality, and the more popular Sex in America.20 Here’s what Laumann found. And I emphasize that Laumann is no radical and not even a feminist, but a very conservative quantitative scholar of impeccable respectability. First, American men widely share a picture of male sexuality as easily aroused and then uncontrollable. Once aroused, a man just “can’t stop.” Women are commonly seen as temptresses whose very presence and whose physical allure make men lose control, and afer that they just aren’t responsible for what they do. Men combine this belief with a related myth about women: that they really want sex even when they say they don’t, and even when they fght against it. Laumann came to the following conclusion about how these attitudes lead to problematic acts of aggression: Although, clearly, sexual interactions between men and women are fraught with ambiguity and potential conficts, there is something more going on than a few misunderstandings. Tere seems to be not just a gender gap but a gender chasm in perceptions of when sex was forced. We fnd that large numbers of women say they have been forced by men to do something sexually that they did not want to do. But very few men report ever forcing a woman. Te diferences that men and women bring to the sexual situation and the diferences in their experiences of sex sometimes suggest that there are two separate sexual worlds, his and hers.21 Specifcally, Laumann found that 22% of women said they were forced sexually at some time afer age 13 (and only .6% were forced by another woman). Only 2% of

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men were forced. All but 4% of these women knew the man who was forcing them and nearly half said they were in love with him. Men, by contrast, overwhelmingly denied using force: only 3% said they forced a woman and .2% said they forced a man. Some may be lying; but Laumann and his co-​authors plausibly hold that the huge disparities cannot be explained away in this manner. Tey suggest that a more likely explanation is that “most men who forced sex did not recognize how coercive the women thought their behavior was.”22 Tey imagine the husband who comes home drunk from a night out with the boys, wanting sex now and thinking it his due; the young man on a date with a sexy woman who makes and accepts some advances but says no to intercourse. Laumann and his co-​authors summarize: “He thinks the sex they have was consensual. She thinks it was forced.”23 Law can’t change culture on its own, obviously enough. But we’ll now see that law has aided and abetted some of these problems, defning some acts of sexual violence as not problematic. We’ll also see, however, that by the 1970s, under the infuence of feminism, law began to be a force for change. And we’ll see, too, that the change came from unglamorous working women and not from elites, although these women needed, and fortunately got, good legal representation.

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6.3  U.S. LAW AND HOW IT HAS CHANGED Before the feminist challenge to criminal law that began in the 1970s, a woman complaining of rape was required to show that the man involved had used physical force, and force additional to the force requisite to consummate the sexual act itself. Te mere threat of force was ofen considered insufcient, although the threat of death or grave bodily injury usually was. Usually, too, the woman had to show that she had resisted, even in the face of force or the threat of force, since only this was taken to give evidence of non-​consent. Some states made resistance a formal statutory requirement, but more ofen it was read into statutes as a requirement implicit in the notions of force and/​or non-​consent. Te old requirement was that the victim resist “to the utmost”; later this was replaced by terms such as “reasonable resistance” or “earnest resistance.” Typical of its period was a New York statute of 1965 saying that rape is committed only when the man uses “physical force that overcomes earnest resistance,” or makes a threat of “immediate death or serious physical injury.”24 A  woman who did not resist physically, or who succumbed to lesser threats, was treated as consenting, and the man’s conduct was not criminal at all. Te standard produced bizarre results. In one case, the victim said she submitted to intercourse because the man threatened her with a knife or box cutter. She got

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the weapon away from him, then submitted to intercourse a second time when he choked her and told her he could kill her. A 1973 New York appellate court set aside the man’s conviction, saying, “[R]‌ape is not committed unless the woman opposes the man to the utmost limit of her power. Te resistance must be genuine and active. It is difcult to conclude that the complainant here waged a valiant struggle to uphold her honor.”25 In another case, a petite Illinois woman who had stopped along a secluded bike path submitted to oral sex when a man, almost twice her weight and a foot taller than her, put his hand on her shoulder and said ominously “Tis will only take a minute. My girlfriend doesn’t meet my needs. I don’t want to hurt you.”26 Understanding this as an implicit threat, the woman did not fght back. Nonetheless, an Illinois court set aside the man’s conviction, saying “the record is devoid of any attendant circumstances which suggest that complainant was forced to submit.”27 Tese requirements were criticized by law enforcement professionals, who believe it unwise for women to fght back in situations of attack. But even in 1981, in a case in which the defendant took away a woman’s car keys in a dangerous area of town, “lightly choked” her, and made menacing gestures, a lower court concluded that the woman had not resisted sufciently to establish non-​consent.28 Although the conviction was reinstated on appeal, a three-​vote minority, in the 4–​3 decision, said of the victim, “She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcome friend.”29 In another case, a high school principal coerced a female student to submit to sexual intercourse multiple times by threatening to block her impending graduation.30 Nonetheless, the case was dismissed because the principal did not threaten the victim with physical force. Notice the strange asymmetry between this treatment of sexual crime and our standard attitudes toward property crime. If I remove your wallet without your express permission, I am committing a crime. I cannot defend myself by pointing to the fact that you failed to put up a fght. But if a man had intercourse without a woman, invading her intimate bodily space, our system thought it a crime only if she ofered physical resistance, frequently in the face of danger. Nor does a conviction of thef require a showing that the thief used more force than was necessary to accomplish the thef itself (although such force may be an aggravating factor). But it was only in 1992, in an unusual ruling, that a New Jersey court held (explicitly rejecting prior tradition) that the element of “force” in rape was established simply by “an act of non-​consensual penetration involving no more force than necessary to accomplish that result.”31 (Tis analogy to property crime is developed in a powerful way by U.S. criminal law academic Stephen Schulhofer, a former colleague with whom

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I’ve been privileged to co-​teach, in his important 2000 book Unwanted Sex: Te Culture of Intimidation and the Failure of Law.32 ) Moreover, a woman who brought a rape charge would typically be subjected to humiliating questioning about her sexual history. It was oddly assumed that the fact that a woman was not chaste was evidence of consent to the particular sexual act in question. Why would such an assumption be made? When we encounter a friend dining at a fne restaurant, we usually do not infer that she would love to have a plate of rancid broccoli rammed down her throat. And yet it is just this sort of “reasoning” that pervaded most rape trials. It would appear that the inference refects an underlying picture of women as divided into two groups: either chaste, or whores with whom anything is permitted. Tese pictures of women have deep roots in our entire culture, coloring the ways in which we see, or mis-​see, particular events. As eminent a cultural authority as Samuel Johnson once said to Boswell, in response to his inquiry regarding whether it was “hard that one deviation from chastity should so absolutely ruin a young woman”: “Why no, Sir; it is the great principle which she is taught. When she has given up that principle, she has given up every notion of female honour and virtue, which are all included in chastity.”33 Tis idea is surely at work in the perception that a woman who does not struggle, at some risk to herself, has consented and has no right to complain. Tese beliefs are greatly reinforced by pornographic depictions of women. Women whose non-​chastity implies consent to anything and everything exist in pornography, but they do not exist in reality—​ except in the limiting case of a person whose selfood is so broken down by repeated ill treatment that she can no longer assert choice and selfood at all. Tese judgments about women also colored the interpretation of the mental element of rape. Men who hold these stereotypical views of women—​widely disseminated in our society through pornographic depictions of women and many other cultural sources—​may actually come to believe that a woman who says no is consenting to intercourse. Te question the law typically had to face, as we have seen, is whether such beliefs were reasonable. Te standard of the “reasonable” is notoriously elusive, and frequently serves as a screen onto which judges project their own (generally male) ideas of appropriate social norms. Many will recall the rape trial of Mike Tyson, at which he claimed (unsuccessfully) that the willingness of D. W. to accompany him to his room was sufcient to make his belief in her consent reasonable, despite the evidence of her vigorous objections and her attempts to escape.34 Such beliefs about consent were not found reasonable in 1993; earlier they probably would have been. In a 1982 case, in which a group of Boston doctors took a nurse bodily to a car, drove her up to Rockport, and had sex with her over her repeated protests, Justice Brown of the Appeals Court of Massachusetts (the frst

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African American appellate judge in the state) commented that it was high time to reject the defense of reasonable mistake as to consent in cases such as this:

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It is time to put to rest the societal myth that when a man is about to engage in sexual intercourse with a “nice” woman, “a little force is always necessary.” . . . I am prepared to say that when a woman says “no” to someone[,]‌any implication other than a manifestation of non-​consent that might arise in that person’s psyche is legally irrelevant, and thus no defense. . . . In 1985, I fnd no social utility in establishing a rule defning non-​consensual intercourse on the basis of the subjective (and quite likely wishful) view of the more aggressive player in the sexual encounter.35 As Justice Brown recognizes, men ofen indulge in wishful thinking about women’s wishes, and (whether hypocritically or sincerely) convince themselves that aggressive behavior is what the situation calls for. If we interpret the “reasonable” in “reasonable mistake” in line with prevailing male social norms, we encourage this sort of wishful thinking. Justice Brown announces a truly radical conclusion: when a woman says no, it is never reasonable in the legal sense to believe that she means yes. Tese false beliefs had a large efect on law and public policy. Tey informed men’s sexual desires and sexual behavior—​as when the knowledge that a woman is not chaste gave rise to an assumption that she would “do it” with anyone;36 as when arousal by a woman’s clothing, gestures, or kissing was taken to license the use of sexual force. Tey also shaped the desires and preferences of women, in many harmful ways. Women who had been raped, however violent and non-​consensual the incident, ofen felt shamed and sullied, and frequently did not even consider turning to the law for help. Ofen guilt about their own sexual desires, or about having consented to kissing or petting, made women feel that they had “asked for it,” even when the rape involved violence and substantial physical damage. In addition, women who had consented to intercourse, but who had not consented to acts of violence within intercourse, also felt it impossible to complain, since the reigning view was that a woman who said yes to intercourse had no right to complain about any further act that ensued. Such a woman would surely have been treated with mockery and abuse by the police had she complained of assault, as in my own case. Tese frequently tragic reactions were caused by a kind of distortion in belief and desire that the feminist movement of the 1970s exposed, arguing repeatedly that female sexual desire and attractiveness are not a way of “asking for it,” that the only thing that counts as “asking for it” is a woman’s expressed consent to the acts in question—​just as the only way of “asking for” someone to take your wallet is to take it out and give it to that person, without intimidation or threat, either explicit or

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implicit. It seems clear that this critique has exposed damaging falsehoods—​although much more work needs to be done to achieve a legal system that adequately protects women’s choices.

6.4  NO MEANS NO A watershed moment in the feminist legal struggle was the 1983 case of Cheryl Araujo, subject of the 1988 flm Te Accused, starring Jodie Foster, which I would rank as one of the very best flms about law.37 Te flm is reasonably faithful to the case with one large change: the male rapists were working-​class Portuguese men, but in the flm they are college fraternity boys. Te choice, wise I think, was to avoid denigrating men of a particular class or ethnic origin, but to portray rape culture as universal, as indeed it is. Te events took place in New Bedford, Massachusetts. Cheryl Araujo, age 21, 5'5", 110 pounds, In March 1983, walked into Big Dan’s bar to get cigarettes. I now quote from the trial record:

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Te facts the jury could have found are as follows. On the evening of March 6, 1983, a young woman (victim) entered Big Dan’s Tavern in New Bedford to purchase cigarettes. While there, she ordered a drink and engaged in a brief conversation with another woman patron. Te two women also conversed with and observed the pool game of codefendants John Cordeiro and Victor Raposo.38 Tere were approximately ffeen men in the tavern. “Sometime afer the other woman lef Big Dan’s, the victim also prepared to leave. Cordeiro and Raposo ofered to give her a ride home, which she declined. While the victim was standing in the area of the bar, Silvia and Vieira approached her from behind, knocked her to the foor, and removed her pants as Cordeiro and Raposo tried to force the victim to perform fellatio. Silvia and Vieira then dragged the victim, kicking and screaming, and swung her onto the pool table. Tere, Silvia penetrated her vaginally while she was restrained at various points by Cordeiro, Raposo, and Vieira. Afer Silvia got of the victim, he held her by the hair as Vieira got on top of her. While restrained on the pool table, Cordeiro again attempted to force the victim to perform fellatio. Eventually, clothed only in a shirt and one shoe, the victim escaped and ran into the street where she fagged down a passing truck.39

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Te bartender on duty testifed at trial that Araujo was “lying on the foor screaming” as two men forcibly removed her clothing, and two other men could be heard boisterously shouting “Do it! Do it!”40 Te defendants testifed that she led them on, dancing with them and returning their kisses. Despite the court’s eforts to shield her, Araujo’s name was repeatedly broadcast on cable TV. Leading feminists gathered to talk about the case, and it became a national cause célèbre. In the end, four defendants were convicted of rape. Two others were acquitted. One of the jurors said: “She wasn’t the greatest of women. She probably egged them on to some degree and they lost control. But afer she said no, she was violated. Tat’s how they broke the law.”41 Te juror’s utterance is confused. It includes the time-​honored idea that when men are led on they will “lose control.” But then, it veers around to a diferent idea: she said no, and that means that when they went ahead, she was violated and they broke the law. Many years later, one of the witnesses who picked up Araujo afer she fed into the street echoed this idea: “So many things came out with the case, so many lies—​that she was a whore, and things like that—​but my thoughts were always that a woman, no matter what, has the right to say no. And frankly, even if she was a whore, it doesn’t matter, because she said no.”42 Like both of these remarks, the case was a true turning point in U.S. law, and a major occasion of public education. It established that No MEANS NO. Under the pressure of this feminist critique, rape law has changed considerably, increasingly refecting the insight that a woman’s “no” means that she does not consent, and does not mean that she is “playing games” and “asking for it,” and that her prior sexual history is irrelevant to the question of consent on a particular occasion. Change has been slow, and there are many problems to solve. 1. Te longstanding emphasis on “no means no” does not yet enable the law to grapple well with cases in which the victim is silent out of fear (as in Warren, the case of the small Illinois biker), and there remains a tendency to suppose that silence expresses consent. Note that we would never think that a patient’s silence in response to a question about whether he wanted a medical procedure was evidence of consent to that procedure; a doctor would be culpable if he simply went ahead and did the procedure, claiming that the patient had expressed consent by silence.43 Our failure to think similarly about women probably betrays the legacy of the “societal myth” that good women will fght to the utmost. Te law has not yet fgured out how to articulate the idea of consent in a consistent manner that protects a woman’s autonomy in cases like Warren.44

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2. “No means no” also doesn’t enable us to deal well with extortionate use of power: the high school principal. Te student didn’t fear physical force, but she submitted to an extortionate demand that would clearly have been illegal in the fnancial area. 3. Date rape: the beliefs about “asking for it” are still operative here: men see petting or even kissing as invitation to intercourse and are outraged if they are expected to stop. Where sexual violence on campus is at issue, we are currently grappling with these matters, but with many uncertainties. Te Obama-​era Title IX guidelines, under which most of us still work, establish mandatory reporting.45 Te minute a student makes a faculty or administrator aware of any issue of sexual misconduct, she is required to report it to the Title IX coordinator, who then confers with the victim and decides how to proceed. Te victim certainly doesn’t have to press charges, and may ask for complete confdentiality. Usually if she doesn’t want to press charges they will not be pressed, since there is typically no other evidence. If she does, then there is a lengthy process in which the accused is asked for a statement, accuser and witnesses also submit their statements, and the Title IX panel reaches a determination of some type. In one case I know well, the process worked well. But the procedures still raise difcult questions. First, how can confdences be protected when there is mandatory reporting? I worry that women will be less likely to open up to me or other faculty, knowing that I am now legally obliged to report it and name her—​even though in principle the Title IX ofce says it protects confdentiality. Second, there is a huge question about the standard of proof. Title IX recommends that the standard be the preponderance of the evidence, not reasonable doubt. Miscarriages of justice can easily occur. Afer a difcult case at Harvard that did look like a miscarriage of justice, a group of mostly lef-​wing law faculty signed a statement protesting the standard and recommending reasonable doubt.46 Tird, is the Title IX process really right to require afrmative consent, and what exactly is that? Schulhofer and others have made excellent points about the shortcomings of “no means no.”47 And yet the idea that sex will be turned into a ritual in which each step must be preceded by explicit verbal permission seems both chilling and unrealistic to many people. And also perhaps ridiculous when both parties are typically very drunk. I am on the Schulhofer side here, but one can see the point of view of critics who suggest that afrmative consent has gone too far. Fourth, are campus tribunals equipped to deal with these issues? It’s easy to see why Title IX wants universities to do so. If nothing happened unless the complainant were to go to the police, very few cases would be prosecuted. Women do

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not trust the police, and they fear the inevitable loss of privacy and confdentiality that would ensue. Ofen, too, they do not want to charge the man with a felony. But people’s lives are now in the hands of people most of whom lack legal training, and it’s only the rare campus that subsidizes legal counsel for the accused. We are grappling with those questions. Tey are tough and subtle. Tat we have reached this place is a tremendous victory. It means that we have achieved consensus on a bunch of really difcult things, and are now pushing the frontier toward greater accountability with regard to some thorny issues that otherwise would not get dealt with.

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6.5  CELEBRITY AND ACCOUNTABILITY Now we arrive at #MeToo. Until very recently, some especially serious sexual crimes, serial predation of a very damaging sort, still faced no accountability. And now we return to professional sports, to my Hufngton Post piece, and to the hundreds of courageous women who have come forward. We have reached a further frontier in terms of accountability. Private citizens who rape women have frequently been held accountable, although non-​reporting and imperfections of the criminal justice system are still serious problems. Even politicians ofen face accountability, since politicians are considered expendable. But there are certain people who have talents that make a lot of money for other people, and those people are typically shielded from accountability. Sports stars are not fungible. Tey have big talents, are difcult to replace, and those talents make other people rich. Media stars and actors might have been expendable and replaceable at one time in their career: afer all, for every role there are probably more than a thousand out-​of-​work actors who could play that role very well. But once actors become stars they are no longer fungible, and studios and investors have a lot invested in them. More generally, we live in a culture of celebrity which makes these people think that they are above the law, sometimes from a very early age. Tings are worse with athletes because the corrupting efect of big-​money talent sets in very early. Tey are groomed from high school on, pampered in colleges and universities, and made to feel like the rules for other people don’t apply to them. Tey are encouraged to deceive. Tus, as we know, U.S. colleges ofen give fake classes and fake grades to athletes, and the athletes understand that faculty are lying to protect them from academic accountability.48 As for sex, they are ofen recruited in situations that positively encourage sexual misconduct:  women are virtually pimped out to athletes universities are trying to recruit, and most big-​sports universities have no shame

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about acting as pimps in this way.49 So from a very young age they live in a culture of deceit and sexual corruption. Actors typically learn corruption later on, although the very real corruption of sleeping your way to a role is surely a bad infuence on younger actors. Let me now mention one issue on the other side, which makes accountability even more difcult. It is the ever-​present possibility, which I mentioned earlier, that superstars will be lied about for purposes of extortion, which really does muddy the waters. We know that sometimes celebrities are really guilty as charged, but sometimes not. I believe, for example, that charges of sexual assault against the basketball star Derrick Rose were probably false, and made in order to extort money. He courageously contested them, and a court found in his favor.50 But no doubt for every case where the person is innocent (and of course this is just my conclusion, which could be utterly wrong) there are many more where the person is guilty, and defends himself by raising the extortion issue. I’ve mentioned some athletes who did face accountability. One salient case is Ray Rice, the case mentioned in my epigraph at the beginning, where the misconduct (punching his then-​fancée so hard that he knocked her unconscious) took place in an elevator that had a hidden camera. In a few other similar cases the conduct has been documented beyond dispute. But these cases don’t really show that big-​money stars aren’t above the law, because what we see is that women are still not empowered to bring charges, and are treated very badly by authorities when they do come forward. Consider Cosby’s case, where many women tried hard over the years to press charges against him, but one by one had no success in establishing culpability, though some had received fnancial settlements. Tis past year it is only the overwhelming record of cases with a precisely similar pattern that fnally caused Cosby to lose honors and lucrative opportunities—​and now one prosecution, the only one not blocked by the statute of limitations, is actually going forward. Most cases are not at all like this. And even this case has had many twists and turns, so we should not predict with confdence that he will be convicted. Surely the long Cosby saga has been draining and terrible for the women involved because of the great power of the celebrity machine protecting him. Another factor that discourages optimism is that, despite the large number of accusers, it took the statement of a male comedian, Hannibal Burress, calling Cosby a “rapist,” to catapult the issue to the front of public attention, ultimately causing more women to come forward, and giving credibility to the ones who had. Women should not need to depend on a male voice to validate their accusations. Tis is why the #MeToo outpouring is so important. It makes it far more difcult for people like Cosby to hide for decades. Te theater/​flm/​media world is extremely hard to police. It is not a closed workplace like a university, where clear rules

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can function well. It is one big difuse workplace, where a Harvey Weinstein (like James Levine in the music world) can have huge power over the future employment of people who are neither his employees nor even, in a narrow sense, prospective employees. So the voices of women, including famous women, have been crucial in bringing accountability into this world, although it will take the professional organizations to make these gains lasting. Cosby is now eighty years old. His acting career was over even before it was ended by the revelations about him. It is I think no accident that people stopped defending him just when he was not making money for them anyway. Te same is true of James Levine. It is rather encouraging, however, that younger, still bankable stars—​Matt Lauer, Kevin Spacey—​have also been brought to justice.51 ) But I fear that things remain worse in the realm of college sports. Now, as my last grim exhibit, let’s consider a case where big money is at stake and credible allegations don’t get taken fully seriously: the case of Jameis Winston. Jameis Winston is an extremely gifed quarterback who began his fame while at Florida State University and since 2015 has played for the Tampa Bay Buccaneers of the NFL. He is 6'4" and weighs 227 pounds. He is twenty-​four years old. He has broken the franchise’s record for passing yards and passing touchdowns in a season, and he is the frst quarterback in NFL history to start his career with consecutive seasons of 4000 yards passing. He holds several other records I won’t bother to enumerate. So: a big talent. Now the facts about sex and non-​accountability.52 On November 14, 2013, the state attorney of the Second Judicial Circuit announced they were opening an investigation into a sexual assault allegation involving Winston that was originally fled with the Tallahassee Police Department (TPD) on December 7, 2012.53 Te complaint was originally investigated by the police and classifed as open/​inactive in February 2013, with no charges being fled. Te police report, containing the complainant’s original statement, was posted by the Tallahassee Police Department. Tallahassee police then stated that the complaint was made inactive “when the victim in the case broke of contact with TPD, and her attorney indicated she did not want to move forward at that time.”54 It was then re-​examined afer media requests for information started coming in early November. Note the importance of the media in pressuring the recalcitrant institutions of the law for real accountability. On December 5, 2013, State Attorney Willie Meggs announced the completion of the investigation and that no charges would be fled against anyone in this case, citing “major issues” with the woman’s testimony. Meggs stated that “We have a duty as prosecutors to determine if each case has a reasonable likelihood of conviction. Afer reviewing the facts in this case, we do not feel that we can reach those burdens.”55 Allegations of improper police conduct were made by

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both parties, with the complainant claiming to have been pressured into dropping her claim and Winston’s attorney alleging inappropriate leaks to the media. Florida State’s policy is that athletes charged with a felony cannot play until their case is resolved, but Winston continued to play throughout the investigation because he was never charged. On April 16, 2014, the New York Times reported irregularities in the rape investigation involving Winston.56 Te complainant developed bruises and semen was found on her underwear. Tirty-​four days later the complainant identifed Winston by name as her attacker. Tallahassee police contacted Winston about thirteen days later. No DNA sample was taken from Winston until the prosecutor took over the case, months later; once it was taken in November 2013, it was found to match DNA found in the complainant’s underwear. Te investigation was conducted by Ofcer Scott Angulo, who, the Times article noted, did private security work for the Seminole Boosters, a group of wealthy alums who provide major fnancial support for Florida State athletics. Meanwhile, the ofcial internal FSU hearing, presided over by retired Florida Supreme Court Justice Major B. Harding, on December 21, 2014, cleared Winston of violating the student conduct code in the sexual assault allegation. He said:

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I do not fnd the credibility of one story substantially stronger than that of the other. Both have their own strengths and weaknesses. I cannot fnd with any confdence that the events as set forth by you, (accuser), or a particular combination thereof is more probable than not as required to fnd you responsible for a violation of the Code. Terein lies the determinative factor of my decision.57 So that was that for the criminal charges. However, in January 2016, the university paid the accuser $950,000 to settle a civil suit she brought against the university. Te accuser, Erica Kinsman (who has publicly identifed herself ), also fled a civil suit against Winston in April 2014, and Winston countersued her for defamation and tortious interference in May 2014.58 In a September 2015 ruling, a federal judge dismissed Winston’s tortious interference claim, but declined a motion to dismiss his claim for defamation. In December 2016, the two sides agreed to an out-​of-​court settlement. Meanwhile, in the fall of 2015, Winston began his stellar pro career. I am not a retributivist. I think that the appropriate goals of criminal law in this and other cases are specifc deterrence, general deterrence, and reform. It’s pretty obvious that general deterrence has not been served here: other athletes see, from this case, that if you are a big talent, you are above the law. University ofcials and rich alumni will pay to protect you. But what about specifc deterrence and reform?

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On February 23, 2017, Winston made a guest appearance at a St. Petersburg, Florida, elementary school—​the type of thing athletes do to show that they are good people and to help public relations for the sport. During the motivational talk, he said,

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All my boys stand up, all my ladies you can sit down. But all my boys, stand up. We strong, right? We strong! We strong, right! All my boys, tell me one time: I can do anything I put my mind to. A lot of boys aren’t supposed to be sof-​spoken. You know what I’m saying? One day, y’all are going to have a very deep voice like this, One day, you’ll have a very very deep voice. But the ladies—​they’re supposed to be silent, polite, gentle. My men, my men supposed to be strong.59 School ofcials and parents were very upset, and on February 24 Winston apologized for his “poor word choice.”60 So here we see someone utterly undeterred, unreformed, unreformable. Even when his laudable goal is to motivate students to strive, the only way he fnds to express that idea is a set of sexist stereotypes. And guess what stereotypes? Male force, male strength, female silence, and non-​resistance. But then, why would Winston be deterred or educated, when a public university, using taxpayer dollars, paid out a million of those dollars to settle a complaint involving him, and when at every step in the road powerful university ofcials and alumni (those Seminole Boosters) were conniving to corrupt the justice system? (And of course the NCAA, a hopelessly corrupt institution, did nothing to stop this and similar cases.) I don’t feel sorry for Winston, but I  almost do, since he has been exploited throughout his life, used as a tool for the enrichment of others, never permitted to get a decent education, and, no doubt, already on the road to a horrible later life of dementia from CTE (chronic traumatic encephalopathy).61 Corrupt university ofcials and alumni are as much in need of accountability as he, and indeed more so, since they are almost certainly serial ofenders and perhaps he won’t be. My conclusion is that big-​money college sports must cease to exist, and I applaud NBA Commissioner Adam Silver’s recent bold proposal to create basketball minor leagues, such as already exist in baseball and in all sports in Europe, only these would have learning academies attached. (I note that Silver is an alumnus of the University of Chicago Law School and winner of our Distinguished Alumni Award.) Let’s applaud this bold idea. Higher education must no longer be polluted by the sewer of big-​money college football and basketball. But I digress. Te longer history I’ve narrated contains many signs of hope, both for culture and for law. Law has indeed been an active participant in changing rape culture. Working women like the Rockport nurse, like Cheryl Araujo, like the high

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school student threatened by her principal, have pushed law forward, and now celebrities are applying further pressure. But there is unfnished business. In a culture of celebrity, and especially when celebrities make money for others, accountability is likely to prove elusive—​unless the public rises up. Afer all, both sports and theater depend on us. And we can already see the results of public outcry in the Ray Rice incident, in the attitude of sports talk shows, in the behavior of beer companies. Te sports leagues have already shown their deference to public opinion in such actions as their boycott of North Carolina over that state’s recent anti-​LGBT law (later repealed, in large part because of that pressure), and their threatened boycotts of other states currently considering such laws. Both leagues and corporate sponsors are hopes for the future. Winston’s past misconduct was sheltered because the old-​boys’ club of Florida State University was determined to protect their rare star. But I actually believe that at this point, if he were to behave in a similar way in the NFL, things would be diferent—​because the good old boys of one greedy university don’t hear women’s voices, but beer and the NFL do seem to, at least sometimes. Consumers are powerful in a consumer culture, and we are all consumers.62 Both sports leagues and their corporate sponsors are accountable to us, to a large and diverse public. Tey need to hear all the time from people who care about women, about LGBT people, about general decency of conduct. So let’s applaud James Brown and other sportscasters who keep the heat on the league and the sponsors. (Brown is the host of Te NFL Today and Tursday Night Football, so he’s a very infuential fgure.) Let’s express outrage about outrageous ofenders like Winston, but let’s not stop with the past. As Brown rightly said, outrage is useful only if it leads to a real project: really hearing women’s voices, and really telling the leagues, the sponsors, the players and the parents of future players—​to use Brown’s words, “What healthy, respectful manhood is all about.” Or, to use our words: Time’s up. On April 26, 2018, Bill Cosby was convicted of three counts of sexual assault.

Notes 1. See Commonwealth v. William H. Cosby, Jr., Police Criminal Complaint 2015-​2583, www. montcopa.org/​2312/​Commonwealth-​v-​William-​Henry-​Cosby-​Jr. 2. Graham Bowley, “Bill Cosby’s Sexual Assault Case Ends in a Mistrial,” New York Times, June 17, 2017, www.nytimes.com/​2017/​06/​17/​arts/​television/​bill-​cosby-​trial-​day-​11. 3. See Commonwealth v. William H. Cosby, Jr., Order of February 24, 2017, www.montcopa. org/​ArchiveCenter/​ViewFile/​Item/​3640. 4.  SeeMartha Nussbaum, “Why Some Men Are Above the Law,” Hufngton Post, January 15, 2016, www.hufngtonpost.com/​martha-​c-​nussbaum/​why-​some-​men-​are-​above-​the-​law_​b_​ 8992754.html.

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5. It is an honor and pleasure to dedicate this essay to my dear friend Josh Cohen. He has been a feminist since the very start of his career, at a time when many men, certainly including men on the lef, were deaf to women’s demands for full equality. Confdent and strong, he never felt threatened by strong women articulating strong demands. As a teacher, he fostered the careers of many of our best women in political thought, prominently including Debra Satz and Annabelle Lever of this volume. As an editor, he continues to usher into print the most demanding and creative feminist work; for example, Kate Manne’s work on misogyny. His tough and incisive comments on works in progress challenge us to aim higher and do better. As a friend his support is unparalleled. 6. I am indebted to an exhaustive compilation of data by Nethanel Lipshitz, on fle with both Lipshitz and me, which amalgamates data from the World Bank, the Human Development Reports, the UN World Women’s Report, and numerous other sources. I  simply pick a few examples here. A  more extensive treatment of these issues is in my “Women’s Progress and Women’s Human Rights,” Human Rights Quarterly 38 (2016): 589–​622. 7. One should note, however, that women in the territory of Utah got the vote in 1870, until it was taken away from them by Congress in 1887—​a history that complicates facile assumptions about Mormon “patriarchy.” 8. Te U.S. is lower than the world average, with 18.5% of total seats in House and Senate held by women. Te UN World Women’s Report gives 10% for lower or single houses of parliament in 1995, the year of the Beijing Platform for Action, and 17% by 2009. 9. Tis does not count unsalaried domestic or care labor, a big issue, on which further to follow. Some nations have a much larger participation gap: in the Arab States, for example, the female rate is 24.7%, the male rate 73.2%. South Asia also has a very large gap. 10.  Khalid Malik, “Sustaining Human Progress:  Reducing Vulnerabilities and Building Resilience,” Human Development Report 2014, United Nations Development Programme, 2014, at http://​hdr.undp.org/​sites/​default/​fles/​hdr14-​report-​en-​1.pdf. 11. On both of these cases, and on the feminist argument about genocide, see later this chapter. See also Anushay Hossain, “Femicide in Italy: Domestic Violence Persists Despite New Laws,” Forbes, August 26, 2013, www.forbes.com/​sites/​worldviews/​2013/​08/​26/​femicide-​in-​italy-​ domestic-​violence-​persists-​despite-​new-​laws/​#412bf5584bc2. 12. I put it this way because, afer the notorious gang rape in India, numerous Americans took a superior stance, calling India a “patriarchal” nation, and a group of feminists at Harvard Law School published a report announcing that they had formed a task force to advise “India and other developing nations” on the problems of sexual violence that “their” people face. “Harvard to the Rescue!” was the headline of one Indian blog piece written by Nivedita Menon, a prominent member of India’s very old and well-​developed feminist movement. “It’s been a long hard haul,” wrote Menon, “so it’s a great relief that the Harvard Law School has stepped in to take this burden of our shoulders.” See Nivedita Menon, “Harvard to the Rescue!” Kafla, February 16, 2013, https://​kafla.online/​2013/​ 02/​16/​harvard-​to-​the-​rescue. Charity should begin at home. In India, female university students are comparatively safe (no campus sports, most students live at home), and domestic violence has not been a hallmark of big-​time sports role models such as cricketers and tennis players. 13.  Te Ofce of Civil Rights’ investigation into the University of Chicago stemmed from a 2013 Title IX complaint fled by former student Olivia Ortiz, and was broadened to include the university’s “policies and practices regarding sexual misconduct” in 2014. See Joy Crane, “University Under Federal Investigation for Sexual Assault Policy,” Chicago Maroon, February 11,

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2014, www.chicagomaroon.com/​2014/​02/​11/​university-​under-​federal-​investigation-​for-​sexual-​ assault-​policy/​. 14.  See “Still Playing:  12 NFL Players Have Domestic Violence Arrests,” NBC News, September 17, 2014, www.nbcnews.com/​storyline/​nf-​controversy/​still-​playing-​12-​nf-​players-​ have-​domestic-​violence-​arrests-​n204831. Te one accused person who emerges with honor is Chicago Bears receiver Brandon Marshall, who did have a string of domestic violence arrests, one leading to a battery conviction in 2008, but who has sought help for “borderline personality disorder” and has become a national spokesperson for mental illness issues. Since that time he has had no further violence issues. 15. Te governor of Minnesota has been very vocal in the Peterson incident. 16.  Radisson, Nike, and Target  all quickly dropped sponsorship of Peterson, and Anheuser Busch made perhaps the most infuential move of all (see later). 17.  See Michael Klopman, “NFL Sponsor Anheuser-​Busch ‘Disappointed And Increasingly Concerned’ With League,” Hufngton Post, September 16, 2014, www.hufngtonpost.com/​ 2014/​09/​16/​anheuser-​busch-​statement-​nf_​n_​5831532.html. 18. I apologize for this narrow focus. Every country has its own history, but ours is complicated enough to demand a full-​length analysis. 19.  Smith, Chen, Basile, Gilbert, Merrick, Patel, Walling, and Jain, “Te National Intimate Partner and Sexual Violence Survey (NISVS): 2010–​2012 State Report,” April 2017, www.cdc. gov/​violenceprevention/​pdf/​NISVS-​StateReportBook.pdf. 20.  See Edward Laumann, Te Social Organization of Sexuality, (Chicago:  University of Chicago Press, 1994); and Edward Laumann, Robert T. Michael, John H. Gagnon, and Gina Kolata, Sex in America: A Defnitive Survey (New York: Warner, 1995). 21. Ibid., 223. 22. Ibid., 229. 23. Ibid. 24. See Stephen J. Schulhofer, Unwanted Sex: Te Culture of Intimidation and the Failure of Law (Cambridge, MA: Harvard University Press, 2000), 24. See also N.Y. Penal Law § 130.00(8) (McKinney 1965). 25. People v. Hughes, 41 A.D.2d 333 (N.Y. App. Div. 1973). 26. People v. Warren, 446 N.E.2d 591 (Ill. App. 1983). Tis case, and others in this section, are helpfully discussed by Schulhofer, Unwanted Sex, 1–​10, and 33–​34. 27. Ibid. 28. State v. Rusk, 289 Md. 230, 424 A.2d 720 (1981). 29. Ibid. 30. State v. Tompson, 792 P.2d 1103 (Mont. 1990). 31. State in Interest of M.T.S., 609 A.2d 1266, 1267 (N.J. 1992). 32. See Schulhofer, Unwanted Sex. 33. James Boswell, Te Life of Samuel Johnson, L.L.D. (London, 1835), 3:47. 34. See http://​www.nytimes.com/​1992/​03/​27/​sports/​tyson-​gets-​6-​year-​prison-​term-​for-​rape-​ conviction-​in-​indiana.html?pagewanted=all. 35. Commonwealth v. Lefowitz, 20 Mass. App. 513, 481 N. E. 2d 277, 232 (1985). 36.  A  vivid description of the gang rape of a young woman of lower class and bad reputation, spurred on by the mythology in question, is in Joyce Carol Oates, We Were the Mulvaneys (New York: Penguin, 1996).

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37. Te Accused. Directed by Jonathan Kaplan, Paramount Pictures, 1988. 38. Com. v. Vieira, 401 Mass. 828, 830 (Mass. 1988). 39. Ibid. 40. “Witness’s Testimony Implicates Two Men in Tavern Rape Case,” New York Times, March 1, 1984, www.nytimes.com/​1984/​03/​01/​us/​witness-​s-​testimony-​implicates-​two-​men-​in-​tavern-​ rape-​case.html. 41. Source was accessed in 2000 but can no longer be traced. 42.  Jay Pateakos, “Afer 26 Years, Brothers Break Silence,” Wicked Local, October 26, 2009, www.wickedlocal.com/​x884487240/​Afer-​26-​years-​brothers-​break-​silence. 43. See Stephen J. Schulhofer, “Taking Sexual Autonomy Seriously,” Law and Philosophy 11, no. 1/​2 (1992): 35–​94. 44. See Ibid. 45. See Russlynn Ali, “Dear Colleague Letter,” United States Department of Education, Ofce for Civil Rights, April 4, 2011, https://​www2.ed.gov/​about/​ofces/​list/​ocr/​letters/​colleague-​ 201104.pdf. 46.  See “Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault,” May 16, 2016, www.lankford.senate.gov/​imo/​media/​doc/​Law-​Professor-​Open-​Letter-​May-​16-​ 2016.pdf. 47. See Schulhofer, “Taking Sexual Autonomy Seriously.” 48. For the particularly egregious but hardly isolated case of the University of North Carolina at Chapel Hill, see https://​www.nytimes.com/​2017/​03/​31/​sports/​ncaabasketball/​north-​ carolina-​fnal-​four-​cheating-​fake-​classes.html. 49. An egregious but hardly atypical case was that of the University of Colorado, see http://​ articles.latimes.com/​2004/​feb/​20/​sports/​sp-​colorado20. 50. Jane Doe v. Derrick Rose, et al., 2016 WL 9023602 (C.D. Cal. 2016). 51. Consider also the fact that the conservative Fox News fred Roger Ailes and Bill O’Reilly; see https://​www.nytimes.com/​2017/​05/​18/​business/​media/​roger-​ailes-​fox-​news-​sexual-​harassment-​ .html, https://​www.nytimes.com/​2017/​04/​19/​business/​media/​bill-​oreilly-​fox-​news-​allegations. html. Ailes died shortly afer being fred. O’Reilly remains active on his own podcast. 52. My narrative of the sequence events follows closely and paraphrases the excellent and detailed summary given in his biography on Wikipedia, which in turn refers to multiple sources. 53.  See “Tallahassee Police Department Incident Report 00-​12-​032758,” December 7, 2012, http://​media.graytvinc.com/​documents/​Complete+Case+File.pdf. 54. “No Charges Filed Yet Against Winston,” Chicago Tribune, November 22, 2013, http://​articles.chicagotribune.com/​2013-​11-​22/​sports/​chi-​no-​charges-​fled-​yet-​against-​winston-​20131122_​ 1_​sexual-​assault-​charges-​dna-​forida-​state. 55.  Mark Schlabach, “FSU’s Jameis Winston Not Charged,” ESPN, December 6, 2013, www.espn.com/​college-​football/​story/​_​/​id/​10082441/​jameis-​winston-​not- ​charged-​sexual-​ assault-​investigation. 56.  Walt Bogdanich, “A Star Player Accused, and a Flawed Rape Investigation,” New  York Times, April 16, 2014, www.nytimes.com/​interactive/​2014/​04/​16/​sports/​errors-​in-​inquiry-​on-​ rape-​allegations-​against-​fsu-​jameis-​winston.html. 57. See “Full Copy of Jameis Winston Hearing Decision,” December 21, 2014, www.foxsports. com/​college-​football/​story/​full-​copy-​of-​jameis-​winston-​hearing-​decision-​122114. 58. Kinsman v. Winston, 2015 WL 11216946 (M.D.Fla.).

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59.  Alanna Vagianos, “NFL Player to Elementary School Class:  Girls Are ‘Supposed To Be Silent,’ ” February 23, 2017, www.hufngtonpost.com/​entry/​jameis-​winston-​accused-​of-​rape-​to-​ elementary-​class-​girls-​are-​supposed-​to-​be-​silent_​us_​58af20a2e4b0a8a9b78012e6. 60. Ibid. 61.  For the latest evidence, see https://​www.upi.com/​Health_​News/​2017/​07/​25/​Nearly-​all-​ NFL-​players-​in-​study-​show-​evidence-​of-​brain-​disorder-​CTE/​7201500998697/​. Accountability for the likely concealment of this evidence belongs to many, and yet, for the fnancial reasons I’ve discussed, those who participated are unlikely to face any penalty. Ninety-​nine percent of former NFL players show evidence of CTE! Tis issue of accountability is huge, but lies beyond the scope of this chapter. 62. Many of us are also parents, and of course parents play a huge role in forming a new generation that lacks such attitudes. Indeed, because of the CTE issue, which has already engaged parents across the nation, we can expect the demise of football within one generation, although the sexual violence issue in sports does not stop there. So parents have a bigger job to do!

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PART THREE Principles for an Interdependent World

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7 Exploitation in International Trade Helena de Bres

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i All philosophers interested in global political morality turn their attention, sooner or later, to the subject of international trade.* Trade was a key driver of the “second wave” of globalization that kick-​started philosophical discussions of global justice in the last quarter of the twentieth century. It is also the target of many of the most urgent charges of injustice that arise in contemporary public debate on international afairs. It makes sense, then, that trade should feature prominently both at the foundational level of philosophical accounts of global justice (as part of an explanation of why principles of justice apply across borders) and at the level of application (as an illustration of what those principles imply for collective and individual action). However, until recently, philosophical discussions of international trade were relatively brisk. Te focus was primarily on larger international structures of which trade was considered to be merely a part, as in the work of the Rawlsian “cosmopolitans,” or on more general questions—​for instance, about the diference between domestic and global obligations—​that did not require sustained attention to the specifc workings of the international trading system. It is only in the past few years that international trade has come to be the subject of sustained philosophical discussion in its own right. An important line of division in this small but growing body of work occurs between accounts of justice in trade that focus on the idea of exploitation and accounts that do not. Te aim of this chapter is to critically examine this disagreement, as a means of getting clearer on the nature and role of exploitation in the morality of 177

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international trade. My conclusion will be that, although concerns of exploitation are well founded and urgent in this domain, any account of justice in trade that centers on those concerns will be problematic. I will concentrate my critical comments on the work of Matthias Risse, Gabriel Wollner, and Richard Miller on trade; and I will draw, in my constructive comments, on Joshua Cohen’s work on global justice and in political philosophy more generally. Although Cohen hasn’t directly addressed the particular subject of this chapter, his broad and deep contributions to the feld are, here as elsewhere, a rich source of inspiration.

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7.1  WHAT IS EXPLOITATION? I begin with some general comments on the concept of exploitation, so that we can be clear at the outset on what it is that accounts of international trade focusing on exploitation are chiefy about. Although diverse specifc conceptions of the nature and wrongness of exploitation appear in the literature, the following fve observations are widely accepted. First, to exploit someone is to take unfair advantage of them. In some cases this involves benefting from rights violations that others have committed against the exploitee (Steiner).1 In other cases it involves benefting from a standing condition or a temporary misfortune, unconnected to rights, that renders the exploitee vulnerable (Goodin).2 In all cases, the exploiter uses his or her superior power to press for an outcome that he or she doesn’t deserve to enjoy. Second—​as this last sentence suggests—​exploitation has both procedural and substantive components. It results in a state of afairs (ofen, a distribution of goods) that favors the exploiter in some morally problematic way. But it also involves a form of interaction on the way to that state of afairs that is itself morally problematic (for instance, coercion, deception, manipulation, oppression, and/​or disrespect). Neither the state of afairs produced nor the process alone fully captures the phenomenon. Tird, exploitation comes in many shapes and sizes. It can be a feature of a discrete act or of an ongoing relationship, it can involve two individuals or many people at once, and it can occur within personal relationships as well as within economic or political institutions. Fourth, it is essential to exploitation that the exploiter gains in some way. But the exploitee may also gain, by comparison with the pre-​exploitation baseline, and therefore consent to the exploitation. Tat is, exploitation can be both mutually advantageous and consensual on all sides. (In other cases, of course, exploitation can be harmful and/​or coercive.) Fifh, to claim that an interaction, relationship, or structure is exploitative is not to commit oneself to the claim that participation in it is wrong, all things considered. Some theorists claim that mutually advantageous, consensual

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exploitation is not morally problematic, period. Others claim that, although it is, it isn’t a serious wrong. Others claim that, although it may be a serious wrong, its wrongness can be outweighed by other moral considerations.

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7.2  EXPLOITATION-​F OCUSED ACCOUNTS OF JUSTICE IN INTERNATIONAL TRADE An account of justice in international trade that focuses on exploitation will make unfair advantage-​taking, of the sort just described, central to its characterization of the political morality of trade. Te most prominent instance in the recent philosophical literature is the account ofered by Matthias Risse (lately, in collaboration with Gabriel Wollner). Te core principle of justice in trade that Risse proposes in his 2013 book On Global Justice states that no country should enjoy gains from trade that come “at the expense” of the people involved in the trade.3 As Risse explains, this requirement is violated when a nation imports goods or services from another nation that it has reason to believe have been produced under oppressive conditions.4 Such conditions include cases where producers beneft from their work, but not to the extent warranted by their contribution, cases where producers do not beneft at all, and cases where producers are coerced into their work through human rights violations, such as child or slave labor. Risse argues that ongoing international trade in the goods or services thus produced makes traders (and the states who enable their trade) complicit in the oppression and its associated harms. But such trade is also, indeed centrally, exploitative: it involves agents taking advantage of vulnerable others in order to advance their own interests. Te practical upshot of this fact is not as radical as one might at frst think. Because trade is so important for economic development and human rights promotion over the long term, Risse argues, we should be wary of ceasing trade on the ground that it is exploitative. He proposes that strict international responsibilities to rectify the forms of injustice included in his principle are limited to the subset of cases in which human rights violations occur. Even in such cases, “other states ought to help end the human rights violations rather than end their association with violations through trading.”5 Risse also suggests that states should be required to report to the World Trade Organization (WTO) periodically on the degree to which the benefts they receive from their imports and exports are tainted, judged against his principle.6 Te account that Risse ofers in his book focuses on a narrow range of exploitative exchanges: those in which actors take advantage of unjust terms of employment that occur within other countries. Tis restricted scope lef Risse’s original approach vulnerable to the criticism that it ignored an equally, if not more, glaring

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form of exploitation in international trade: that of rich countries taking advantage of the weaker position of poorer countries in trade policy and multilateral trade negotiations.7 In such cases, rich countries are more directly implicated in the associated wrongs than in the cases on which Risse focuses. In his more recent work, Risse has accepted this criticism and acknowledged that exploitation occurs between states in bilateral trade deals and within WTO agreements.8 However, he has yet to ofer a principle or set of principles explaining precisely what nonexploitation would look like in these broader contexts. Another “exploitation-​focused” account of justice in trade that goes somewhat further on this front appears in Richard Miller’s 2010 book, Globalizing Justice.9 Miller’s overarching aim in that book is to defend the claim that the major source of our “vast, unmet global responsibility” to help the global poor is not a humanitarian duty to respond to “neediness as such” but, instead, a relational duty to not take advantage of the severe deprivation of others when pursuing our own goals.10 In the realm of international trade, this general duty devolves into two more specifc ones. First, developed world consumers who derive benefts from the exploitation of developing-​country workers should use these advantages to relieve the desperate neediness that enables the exploitation.11 Tis will chiefy involve supporting measures that strengthen the economies of developing countries. Second, citizens of the developed world ought to press for outcomes in international trade and fnancial negotiations that mimic those that would arise from deliberations undistorted by poor countries’ desperation.12 Miller argues that this will “require a large shif in current benefts and burdens in favor of people in developing countries, along with some signifcant losses to economically vulnerable people in developed countries.”13 What does it mean to “focus” one’s account of justice in trade on exploitation? As both Risse’s and Miller’s accounts illustrate, it doesn’t mean to deny that moral concerns other than exploitation apply to trade. Alongside his “at-​the-​expense-​of ” principle, Risse argues that trade is subject to human rights–​related principles and principles of domestic justice. Where human rights are concerned, he argues that trade must be conducted in a way that is congruent with states’ general duties to assist developing countries in building human rights–​supporting institutions. Where domestic justice is concerned, states must satisfy their citizens’ legitimate claims to assistance in the face of competitive pressures caused by international trade. Similarly, Miller’s limited duty to respond to “neediness as such,” independently of duties that arise through economic and other relationships, presumably imposes some constraints of its own on morally permissible trade policy. What is distinctive about both accounts is the claim that the requirements of distributive justice (as opposed to human rights or humanitarianism) between members of distinct nations (as

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opposed to members of the same nation) are exhausted, in the trade domain, by a principle of nonexploitation.14 To further clarify what is distinctive about an exploitation-​focused account of justice in trade, it will help to describe the key competing approach in the current philosophical literature.15 Tis is the account ofered by Aaron James, in his 2013 book Fairness in Practice and related articles.16 James agrees, broadly, with Risse and Miller on the question of what fundamentally grounds principles of distributive justice (in trade, as in other domains). Such principles arise in the presence of association, rather than merely shared humanity, and, in particular, in the context of ongoing socioeconomic structures, not merely discrete transactions. Where James most signifcantly parts company with Risse and Miller is not on the ground but on the content of justice in this sphere. James’s principles of justice in trade make no reference to exploitation. Instead they specify a particular distributive outcome, one that demands substantial equality. According to James, any governed social practice, if it is to avoid the charge of arbitrariness, must treat its participants equally, unless diferential treatment can be justifed as reasonably acceptable to all afected. Te system of mutual market reliance on which the contemporary multilateral trading regime is based is one such governed social practice.17 Tis fact generates a presumption in favor of equal distribution of the gains from trade across trading nations, overridden only if poorer countries receive the greater gains.18 In practice, this means that all WTO members must work toward instituting trading rules with egalitarian outcomes for all WTO members. As part of this—​and also as part of an independent duty to avoid or compensate for foreseeable harm—​richer trading nations must assist poorer trading nations in establishing and funding the nonmarket institutions (such as social security measures and labor market adjustment programs) necessary to ensure that gains from trade are fairly distributed domestically and that those harmed by trade receive adequate compensation.19 James’s account clearly involves much more demanding requirements than does Risse’s original account. Te “at-​the-​expense-​of ” principle of justice that Risse proposed in his book makes no mention of equality, or indeed of any redistributive demands between trading partners. James’s account is also likely to be signifcantly more demanding than the expanded account of justice in trade that Risse and Wollner propose to develop. Although they have yet to elaborate a specifc principle of nonexploitation to apply to multilateral trade negotiations, they have explicitly denied that it will take the substantively egalitarian form that James adopts. It is less clear just how distant the practical recommendations of James’s and Miller’s accounts are. Miller’s requirement that the outcomes of trade negotiations track a good-​faith commitment to reciprocity does not make direct reference to equality. However, Miller does suggest that “the basic tendency of reasonable trade deliberations will be

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a trade regime [that] . . . most favors the countries where there is the most need. . . . In short, in the absence of serious reasons to the contrary, the poor will be favored.”20 James can accommodate concerns about exploitation within his account. But such concerns will not be central, either at the level of theory or at the level of practice. Teoretically, any requirement not to engage in exploitation in the course of international trade will derive from the more fundamental principles of “structural equity” that are James’s key preoccupation.21 And, as a practical matter (relatedly), concerns of exploitation will need to give way to the demands of those deeper principles, should conficts between them arise.

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7.3  WHAT IS ATTRACTIVE ABOUT AN EXPLOITATION-​F OCUSED ACCOUNT? Accounts of fairness in international trade that center on exploitation have considerable appeal, for the following three reasons. First, core features of the activity of international trade make it ripe for analysis in terms of exploitation. International trade involves: (i) the exchange of goods and services, that are (ii) produced by workers under contract to employers, (iii) within an overall institutional structure whose terms are set by bargaining. Paradigmatic examples of exploitation, across the board, involve some or all of these features. All instances of consensual exploitation can be understood, at a sufciently abstract level, as exchanges resulting from bargains of some sort. And many of our readiest examples of exploitation occur within the market in particular, whether it’s the proletariat being robbed by the bourgeoisie, the undocumented immigrant being denied basic labor protections, or the relatively afuent customer being charged exorbitantly for a snow shovel by a hardware store owner during a blizzard.22 For this reason, the basic subject matter of trade tends to direct our normative attention toward the possibility of unfair advantage-​taking. Second, many of the most common and urgent criticisms of contemporary international trade either make direct reference to exploitation or can be readily interpreted in terms of it. Tose who urge us to boycott sweatshops or to purchase “fair trade” products ofen do so on the ground that our purchases would otherwise make us complicit in the exploitation of foreign workers. And critics of the WTO frequently charge it with taking advantage of the bargaining weakness of its less developed members.23 An exploitation-​focused account of justice in trade is ideally placed to explain and justify these sorts of concerns. Accounts that aren’t focused on exploitation will need to tell a more roundabout story about what is problematic in

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these cases, a story that may not align well with our immediate, intuitive sense of the nature of the wrong at issue. Tird, an exploitation-​focused account appears able to sidestep a troubling challenge that besets James’s competing account:  identifying the set of benefts and burdens to which principles of justice in trade are to apply. On James’s view, structural inequity is only present if nations beneft unequally from international trade as a direct result of the social practice of trade itself.24 Inequalities in beneft between trading partners that arise, instead, out of “exogenous” factors such as nations’ size, chosen economic organization, natural resource endowment and past good fortune are not unjust. Tis proposal relies on the tenability of a distinction between the gains produced by the trading system and the set of goods that would exist without it (in a hypothetical situation of “autarky” in which each country produced independently and didn’t trade.) But in a world like ours, where nations’ trade-​afecting endowments and choices have themselves been pervasively afected by centuries of trading, it can seem impossible to draw this distinction in a principled and practical way. Risse and Wollner present this difculty as one of the key rationales for moving away from a theory, like James’s, that defends “substantive” distributive principles concerning the proper division of a cooperative surplus, and toward a “procedural” approach like their own, centered on exploitation.25

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7.4  WHAT IS UNATTRACTIVE ABOUT AN EXPLOITATION-​ FOCUSED ACCOUNT? An account of justice in international trade that focuses on exploitation therefore has intuitive appeal, aligns well with common charges of injustice in trade, and apparently dodges a thorny theoretical-​empirical challenge faced by the key competing account. What’s not to like? In this section of the chapter, I present a set of problems that any exploitation-​focused account of justice in trade will face. I argue that these problems are sufciently serious to justify our seeking an alternative approach. 7.4.1  Teoretical Incompleteness As noted earlier, all instances of exploitation involve both a procedural and a substantive component. An exploited person is treated in a morally problematic way that results in a morally problematic outcome. In the specifc case of economic exploitation, the substantive component is spelled out in terms of an unfair division of a set of economic goods. Te frst problem for an exploitation-​focused theory of justice in trade is that any plausible and complete account of what constitutes an unfair division of these goods takes us beyond concerns with exploitation to principles of

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justice with a quite diferent character. As a result, although exploitation is present in international trade, a fully developed understanding of it shows it to not be the central concern. Risse’s and Miller’s accounts both illustrate this point. Let us start with Risse’s “at-​the-​expense of ” principle, which, as we have seen, condemns as exploitative purchases of goods from foreign producers who (a)  are coerced into their work through human rights violations, (b) do not beneft from their work at all, or (c) do not beneft from their work to the extent warranted by their contribution. Cases falling into categories (b) and (c) depend on the provision of a substantive account of what would in fact be a fair amount of beneft for producers, so it is here that Risse’s account runs into difculties of the kind that I have in mind. Risse’s suggestion—​lef unexpanded in the text—​is that workers should be compensated in accordance with the value of their contribution to the product (where that value, evidently, is not determined purely by facts about existing supply and demand). But it is notoriously difcult to fesh out this idea of economic reward tracking economic contribution in a satisfying way. One suggestion, advanced by Wertheimer, is that the value of the worker’s contribution is determined by the price that her labor would command in a fully competitive market; the other main proposal, advanced by Marx, is that it is determined by the labor that the worker necessarily performs in making her product.26 Both these suggestions face seemingly insurmountable objections.27 When discussing domestic economies, owing in part to problems of this sort, most theorists of justice have abandoned the attempt to apply principles of substantive justice directly to particular economic transactions (or to a series of such transactions). Instead, they have shifed the target of their principles to the broader structures within which these transactions take place. What matters, where distributive justice is concerned, such theorists argue, is that the overall benefts and burdens of social cooperation—​including income, wealth, and opportunities—​be distributed fairly across all cooperators. Our system of economic production and distribution—​which is only one part of the broader “social basic structure” that determines this overall division of benefts and burdens—​ought to be structured in whichever way is most likely to produce that fair result. Tis might—​theoretically—​ involve a laissez-​faire market system in which wages are set entirely by the forces of supply and demand, paired with an extensive scheme of redistributive taxation. Or, it might involve more active regulation of labor markets, including the setting of a robust minimum wage. Or, it might involve no markets at all. Te key point is that “the primary subject of justice” is a social structure; justice applies only indirectly, if at all, to transactions made within that structure. Tis is the standard Rawlsian approach, of course, and Risse accepts it domestically. He also claims to accept it, or something like it, internationally. He argues that

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the target of his “at-​the-​expense-​of ” principle is an ongoing trading relationship that takes place within the context of the contemporary international trading regime, not merely as an individual trading transaction. But, as we have seen, the substantive principle of distributive fairness on which his principle relies ends up applying, quite narrowly, to a specifc division of benefts between the producer and purchasers of a product. Tis fact casts doubt on what real work the appeal to “ongoing structures” is doing in the account. One motivation for, in efect, focusing on (a series of ) particular transactions in international trade could be the belief that there is no overarching “global basic structure” that might be set so as to remedy the morally problematic efects of transactions that leave producers poorly of. In a structural vacuum, it might seem necessary to hold particular transactions to a distributive standard instead. But there is, of course, a structure intermediate between particular trading relationships and a globe-​encircling social scheme that might be charged with the task of ensuring distributive justice:  the multilateral trading regime. As noted earlier, Risse has now acknowledged that concerns of exploitation arise in negotiations made within that regime. He seems to understand this acknowledgment as a supplement to his earlier account. I suggest that, given the problems mentioned here, a better strategy would be to view it as a replacement. Risse could continue to argue that trades premised on human rights violations were exploitative and that a theory of justice in trade needed to highlight that fact. But the form of exploitation on which his exploitation-​focused account focused would be the kind that occurs within trade negotiations among states, not among particular trade exchanges.28 Tis is in fact the route that Miller takes. While Miller does argue that concerns of exploitation arise in transnational production and exchange, he emphasizes that not all trade with developing countries is exploitative. Many developing-​country products are sold at lower prices than similar products in developed countries merely because they are less desirable (owing to lower skill, inferior technology, reliability, and other factors), not because those producing them have been pressured into unfair employment contracts. As Miller notes, this fact importantly limits the extent of the international responsibilities that arise from the fact of benefting from particular trades. On his view, most of those international responsibilities will instead arise from the distinct duty to avoid exploitation within the WTO and bilateral trade relationships. Tose relationships can be structured in very diferent ways—​ways that have very diferent implications both for the types of international trade transactions that occur and for the shape of supporting institutions that might remedy the substantial burdens in which some of those transactions (taken in the aggregate) result. For Miller, justice in trade is primarily a matter of prohibiting richer

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nations from exploiting their superior power to obtain the structures, within the available range, that disproportionately beneft them. Say that we shif our attention, then, away from Risse’s original account, and toward an exploitation-​focused account of justice in trade that solely or mainly targets multilateral and bilateral trade negotiations. Tis account, once again, will include both procedural and substantive elements. Trade negotiators will be required to avoid engaging in interactions with each other that are coercive, deceptive, manipulative, oppressive, and/​or disrespectful. And the results of their negotiations will need to be fair to all parties concerned. Te key question here is, once again, how to spell out what a fair outcome would be. Since Risse has yet to address this question, I will focus on Miller’s proposal. As noted earlier, Miller argues that trade negotiations are nonexploitative only when they result in outcomes that mimic those that would have arisen from deliberations undistorted by poor countries’ desperation.29 We are to imagine what WTO policy (etc.) would look like if rich and poor countries were in a position to advance their interests on an equal footing: that hypothetical result is what justice in trade requires. More specifcally, Miller suggests that trade representatives are bound by a responsibility of “good faith” that involves two forms of “reciprocity”: On the one hand, each [representative] must seek an arrangement that all representatives can responsibly willingly accept, provided that all the others have the corresponding commitment. On the other hand, the representatives must observe reciprocity in their reasoning, backing their own proposals with morally relevant reasons and giving weight, in proportion to seriousness, to relevantly similar reasons ofered by others, so that the importance of a consideration is assessed by its strength rather than the identity of those afected by it.30 Te result of fulflling these responsibilities, Miller argues, would be a trading regime that advances the good of each citizenry, taken as a whole (making necessary adjustments for past violations of good faith), while favoring the morally weightier interests of poorer countries. Tat all sounds good. But it raises the following important question: How different, in substance, is this proposal from an account of justice in trade that makes no reference to the idea of exploitation and instead simply asks directly (as James does) what distribution of the benefts and burdens of trade across trading nations would be fair? James’s principles of structural equity may have a more explicitly egalitarian character than Miller’s proposal does, but they are otherwise quite similar in

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their implications. What exactly is added by framing these distributive requirements in terms of a prohibition on unfair advantage-​taking? I want to suggest that, although something is added, that something is not what exploitation-​focused theorists think it is. A  principle of nonexploitation doesn’t really provide an account of what justice in trade demands. Instead, it provides an account of the ethics of trade. It reminds agents (here trade negotiators, elsewhere consumers and frms) of their duty not to interact with others in ways that would undermine requirements that are specifed by an independent standard of justice in trade. Principles of nonexploitation, even when they arise in the context of structures rather than as discrete acts, specify constraints on the behavior of agents. Principles of distributive justice proper, on the other hand, apply directly to social structures. Te ethical principle of exploitation, fully spelled out, is dependent for its substantive content on these deeper principles of structural justice. Importantly, we can’t plausibly say the same in the opposite direction. Te content of the structural principles does not depend on a specifcation of what types of interactions with others are coercive, manipulative, or bullying. Tis suggests that, even if those ethical considerations are pressing, it is the structural principles that are of primary importance in determining the political morality of trade. In short, yes, WTO negotiations are frequently exploitative, but they are exploitative because their results violate substantive distributive requirements, and that is the fundamental problem. Risse and Wollner argue, against this suggestion, that an account focused on the idea of exploitation constitutes a fundamentally distinct approach from the kind of “substantive” approach that James adopts. Tey ofer two reasons in support of the claim that “a principle prohibiting unfair advantage is diferent from a principle identifying a particular distribution as required by fairness or justice.”31 First, they say, two theorists can agree that a transaction is exploitative while disagreeing over what a just outcome of that transaction would be. Tis is true enough, but unpersuasive for Risse’s and Wollner’s purposes. Sure, we can confdently claim that an interaction is exploitative on the basis of its procedural defects and a general sense that its outcome is unfair. But to actually justify the claim that the interaction is exploitative, we will ultimately need to provide an account of what an unfair outcome is. It won’t do, for the purposes of a philosophical account of justice, to leave that part of the analysis permanently vague or blank. At some point, we will need to appeal to substantive principles. Risse’s and Wollner’s second attempt to distinguish a principle of exploitation from a substantive principle of justice relies on the claim that, whereas we can avoid exploiting in a variety of ways (e.g., by simply not transacting or by holding an auction), a substantive approach requires us to secure a unique distributive outcome. But, again, this is unpersuasive. Te requirements of a (nonconsequentialist) substantive approach can likewise be satisfed by simply

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dissolving the social structure to which those requirements apply. Moreover, a substantive theorist need not claim that structural equity requires a unique distributive outcome. Many distributions of particular goods can be compatible with it, provided that the overall shape of the distribution satisfes the principle(s) identifed by the account. Te conclusion of the discussion so far is that a complete account of exploitation in international trade depends upon the provision of a substantive account of fair outcomes that is specifed independently of the idea of exploitation. Intuitively, this substantive account provides the fundamental core of the theory: if the theory is intended (as it is standardly presented) as a theory of justice, as opposed to a theory of ethics. If an account of justice in trade that appeals to exploitation is not to be problematically incomplete, it needs to pass the buck to normative concerns that are not primarily about advantage-​taking.

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7.4.2  Normative Incompleteness Te preceding criticism charges exploitation-​focused accounts with a quite general theoretical faw: failure to adequately specify key components (without passing the buck). A second problem with exploitation-​focused accounts is normative in nature. If we treat exploitation as being at the center of injustice in trade, I will now suggest, we are liable to omit or distort signifcant moral concerns. One type of injustice that an exploitation-​focused theory is poorly placed to accommodate is the injustice that is present when some cooperators fail to achieve an adequate level of cooperation within a given social scheme. In order to exploit someone, you need to be actively interacting with them. But in some cases of injustice, the problem is precisely an absence of interaction, or, at least, an insufcient amount of it. For instance, the main problem that many developing country workers face in international trade is not, contra Risse’s initial account, that they are insufciently compensated for their contributions but, rather, that they are unable to contribute to full capacity, within a consequential rule-​governed regime that massively afects their interests. Or, to shif the focus from individual workers to nations, as I have suggested we should, many critics of the WTO similarly argue that it is unjust that the multilateral trading regime efectively blocks some developing country members from expanding their trade. It is important to my criticism here that we are considering cases of partial, not total, exclusion from cooperation. Like all the theorists discussed in this chapter, I consider justice to be an associative duty. Tis position implies that if we could fnd someone who lived her life entirely outside the operation of international trading relationships, her exclusion from those relationships would not count as an injustice

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(although we might criticize it on other moral grounds).32 Where an injustice does arise, “associativists” hold, is when an agent is in fact involved in a justice-​generative relationship, but is unable to adequately participate in it. We can understand the WTO’s eforts to provide “Aid for Trade” to the organization’s least developed members as a recognition of this kind of concern.33 Such aid can be justifed partly on humanitarian grounds. But it can also be seen as fulflling a condition of fair cooperation. Tose who are already cooperating, the idea goes, ought to be in a position to cooperate fully, rather than with one hand tied behind their backs. Can an exploitation-​focused theory accommodate this point? In part, yes. Playing a game with one hand tied behind your back is likely to result in your partner’(s’) taking advantage of you. But a theory focused on exploitation can only account for half of what properly worries us about this situation. It can condemn the advantage-​ taking that results from only partial integration into international trade, but it can’t condemn the initial situation that renders that exploitation possible, a situation that seems unjust even before anyone takes advantage of it. An exploitation-​focused theorist might dispute this point by claiming that the initial situation is unjust precisely because it is the result of prior exploitation within the system of governance that regulates international trade. For instance, some of the barriers to efective cooperation within the international trading system result from the WTO’s practice of ofering variable terms of accession to the organization. Incumbent WTO members routinely place more demanding requirements on least developed countries (LDCs) eager to join the organization than those that apply to current members.34 Although this response goes some way toward addressing the concern, it does not go the whole way. Much of the inability of LDC members of the WTO to fully beneft from WTO membership does not result from these active forms of discrimination, but from supply-​side constraints:  their lack of the infrastructure and institutional capacity to increase the quantity and quality of their products and to reliably get them to market. Developed-​country members of the WTO beneft from the participation, such that it is, of these countries in the international social practice of trade. It is only fair, as a condition of the just enjoyment of that beneft, that they assist less advantaged members in their own eforts to beneft from the practice that they jointly share.35 Justice requires either exclusion or full inclusion in the joint scheme of production. Te intermediate option of partial inclusion is unjust, but not solely or primarily because it is produced by or results in exploitation. Say that we decide that WTO members do have a duty of justice to ofer “Aid for Trade” to LDC members, as a condition of fair cooperation. Since, as a general matter, justice generates claim-​rights, the recipients of that aid will then possess a claim to the resources that are to be allocated. Tis fact generates a distinct issue of justice in trade that an exploitation-​focused account is likely to miss. Certain ways

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of distributing resources to satisfy the relevant claims will be unjust. For instance, an LDC member can reasonably complain of unfairness if all the WTO’s justice-​ motivated Aid for Trade goes to only a subset of the countries that need it, or if it is distributed purely in accordance with a principle of efciency or greatest capacity to beneft. Te compelling idea that justice constrains the allocation of aid resources to claimants in this way is not something that an exploitation-​focused theory can fully accommodate. In some cases, the threat of uneven aid distribution might conceivably be used to advantage those who allocate the aid, rendering the result exploitative. But in other cases, uneven allocations may be accidental or nonbenefcial to donors. Both types of cases plausibly result in injustice, but an exploitation-​focused account cannot explain why. Te fair distribution of Aid for Trade is hardly at the core of injustice in the contemporary trading system. But this example does support the general point that I am pressing in this chapter: that injustice in trade is primarily a matter of the unfair distribution of the benefts and burdens of trade, and only in a derivative or supplementary fashion a matter of the exploitative interactions that produce that distribution. A third type of injustice in trade that an exploitation-​focused account struggles to accommodate is that of distributive injustice among prosperous traders. Te reason for this may not be immediately obvious. As a conceptual matter, exploitation does not require that an exploitee fall below an adequate threshold of economic resources, or even have fewer resources than the exploiter. Rich people, and people who are equally rich, can exploit each other within economic exchanges and relationships. Te example of the snow shovel purchase in a blizzard referenced earlier is a clear illustration of this. However, when giving examples of exploitation in international trade, exploitation-​focused theorists, as a matter of fact, exclusively feature exploitees who face serious economic disadvantage overall by comparison to their exploiters. Miller justifes this narrow focus as follows. It is hard to tell, when bargaining with a wealthy agent, whether or not one is pressing one’s advantage too far, and erring on the side of restraint in such cases can result in economically inefcient exchanges that harm everyone over the long term. As a result, Miller recommends the working assumption, in the case of international economic relations, that “no one takes advantage of another in an interaction involving no force or deception by either party in which both parties do better and neither ends up badly.”36 Tis is a reasonable assumption. It is plausible that exploitation rarely, if ever, occurs between wealthy trading nations. Although rich people might exploit each other in other contexts, the situation of prosperous trade negotiators does not look much like the situation of, say, the snow shovel purchaser. Tat person, albeit rich, is in a state of transient desperation: he needs the shovel now if he is not to be snowed in and the hardware store owner has a temporary monopoly on the supply. When

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wealthy trade negotiations bargain with each other, by contrast, they are engaged in decades-​long discussions with partners of roughly equal bargaining power over the terms of an ongoing relationship that benefts all involved handsomely. When disagreements arise, they are over how to distribute the cooperative surplus of this relationship fairly. Te problem for the exploitation theorist is that, although the specter of exploitation does not hover over such disagreements, the specter of injustice does. Some divisions of the cooperative surplus between prosperous parties would clearly be unjust. It would not plausibly be fair, for instance, for Ireland to consistently do much better from WTO membership than Australia (adjusting for diferences in their capacity to trade that are independent of the regime). And that outcome would be unfair even if it were the case, as we are assuming (given their roughly equal bargaining power within the organization), that it did not result from Ireland exploiting Australia. To say this is just to press the point, once again, that even in the absence of coercion, manipulation, oppression, and bullying, justice plausibly imposes substantive constraints on the overall distribution of benefts and burdens that obtains within a rule-​governed, highly consequential scheme of joint social production. Again, although injustices between prosperous traders are clearly of much lesser moral urgency than the injustices that poor traders sufer, the inability of an exploitation-​focused account to plausibly include them within its scope casts doubt on its adequacy as a comprehensive approach to the domain.37 I have argued so far, in this subsection, that exploitation-​focused accounts are unable to adequately accommodate injustices in trade that take the form of partial inclusion of participants, unfair allocation of resources to claimants, and unfair divisions of the benefts and burdens of trade between prosperous traders. Tese forms of injustice might seem peripheral (although I have suggested that their theoretical implications are in fact signifcant). So, I will fnish by emphasizing that, even in the case of the poster-​child instances of exploitation on which exploitation-​ focused accounts center, those accounts are liable to distort the moral issues at hand. Te paradigmatic instance of exploitation is an interaction in which an individual agent, or a small group of such agents, intentionally uses his, her, or its superior power in a morally defective manner to successfully press for an undeserved advantage. A principle of nonexploitation is useful and necessary in interpersonal contexts of this kind, insofar as it gives agents guidance about which kinds of moves are and are not permissible for them to use when pursuing a specifc goal that they are intent on pursuing. However, a principle of nonexploitation will not generally sufce to guarantee a morally acceptable outcome in a context with signifcantly diferent features. In particular, a principle of nonexploitation is unlikely to secure justice in the context of an ongoing, complex social practice made up of a very large number of

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agents. In part this is because, the larger and more complex a social practice gets, the harder it is to reliably predict what advantages will accrue to individual participants as a result of particular interactions that occur within it. Individual agents usually have little, if any, power to afect the broad shape of the practice by means of any specifc interaction, and any signifcant impact that they do have can easily be thwarted, reversed, or outweighed by the impact of the actions of countless others, either immediately or in the longer term. In such contexts, what we most need is not a principle that advises agents on how to conduct themselves in particular interactions but, rather, one that allows us to assess the distribution of advantages that does in fact result from the set of those interactions over time. Te main task of a theory of distributive justice is to provide that principle (or principles). It won’t plausibly reduce to a principle requiring agents not to act exploitatively in particular exchanges, bargains, and agreements (even setting aside my earlier concern about the buck-​ passing this suggestion involves), because there is no guarantee that acting in accordance with such a principle will result in a just social practice. Te cumulative efect of individually nonexploitative interactions might be unjust overall. Justice in the social practice may even permit or require what look like exploitative individual interactions, if they are a necessary part of a practice that is justifable to all participants. Te contemporary system of international trade is one such very complex practice. As a result, the attempt to center a theory of justice in trade on the idea of nonexploitation risks distorting the content of the real and urgent duties of justice that obtain within that system. Tis is so even if we shif our focus away from exploitation within particular economic exchanges to exploitation on the part of trade negotiators. We should be seriously concerned with the substantive outcomes of the contemporary trading system over time. Concern with the nature of the particular bargains struck by trade negotiators has an only instrumental relationship to that primary concern, if it is distributive justice proper that we are aiming to secure.

7.5 BEYOND EXPLOITATION I argued in the previous section that any exploitation-​focused account of justice in trade, whatever its specifc formulation, will face a number of pressing problems that derive from fundamental features of the concept of exploitation. In response, defenders of such accounts might argue that opposing accounts likewise face serious challenges, and claim that, on balance, their own approach is preferable. In this fnal section of the chapter, then, I will briefy consider three ofensive moves of this sort on behalf of exploitation-​focused theorists and explain why they are not compelling.

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I will focus on Aaron James’s competing account, since it is the most well developed alternative in the literature and the direct focus of Risse’s and Wollner’s critiques. Since this chapter was initially written for a conference in honor of Joshua Cohen, it also seems appropriate to highlight, in this fnal section, the connections between the argument that I am advancing here and Cohen’s work in political philosophy. Cohen has not written directly on the subject of this chapter, so I will not be able to draw on particular arguments of his concerning the role of exploitation in the political morality of trade (although I believe that the general thrust of my argument is consistent with his writing on other subjects). But my main debt to him, in any case, is a set of attitudes toward philosophy and politics—​attitudes that have informed my work more thoroughly than any specifc doctrines or arguments might have done. In an inadequate nod to this very large debt, I will frame my points in this section in terms of some of these Cohen-​esque attitudes. Tose that seem most relevant here are an attitude of critical respect, an attitude of idealistic pragmatism, and an attitude of imaginative pluralism. As I noted earlier, one general argument in favor of exploitation-​focused accounts is that they are true to the way that many people think about justice in trade. A lot of the anti-​globalization movement—​and also a lot of what we might call the “better globalization” movement—​is driven by a desire to not be advantageously complicit in the oppression of the citizens of developing nations. An account of justice in trade that sidelines the idea of exploitation may seem to these many people to be missing the main point. One response to this objection is to dismiss it as irrelevant. Economists and political scientists ofen take such a dismissive tone toward the critics of globalization, accusing them of ignorance or confusion concerning the economics and politics of international trade. Philosophers can be dismissive for a diferent, more general reason, insofar as they doubt the probative force of popular moral intuitions across the board. I don’t consider it out of place in philosophy to appeal to the weight of popular opinion in the course of supporting one’s view. Ethical argument is shot through with appeals to intuition, whether one admits it or not, and there is something to be said for appealing to intuitions that many other people have expressed, rather than exclusively consulting your own. Philosophy should take widely and fervently expressed attitudes seriously, both because those who hold them may well be on to something and because any other response violates a norm of dialogic respect that—​ one continues to hope—​is what our discipline is all about. Tat said, the role of philosophy is also to extend the way that people think, to help all of us move beyond our ofen overly narrow understandings of the phenomena that we are discussing. What philosophers should do is approach our initial

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ideas about a subject with an attitude of openness and interest, an expectation that, if many people have thought carefully and passionately about a subject, there is likely to be something of value there. Ten, if problems with those ideas become apparent, the best philosophy will attempt to explain how what is appealing in those initial ideas can be accommodated within a reconstructed, ofen more expansive account of the phenomenon that lacks the problems.38 What I have argued in this chapter is consistent, I hope, with this attitude of critical respect. I haven’t argued that the concept of exploitation should be eliminated from our account of justice in trade, only that it should be allocated its proper place; and I have made that argument on the basis of concerns that many critics of globalization share. Te most immediately counterintuitive part of the argument, for the average person concerned about trade, is probably the suggestion that we can’t be sure that any particular trade exchange or deal is distributively unjust until we have examined the shape of the overall social practice in which it occurs. But I think—​ or again, hope—​that a robust and plausible account of what justice in that overall system would look like can serve to alleviate the legitimate worry that a more holistic account will ride roughshod over the legitimate claims of individual agents. Tis hope depends, of course, on the possibility of providing such a robust and plausible account. A second argument in favor of an exploitation-​focused approach, as we saw earlier, is that the only viable option here is one that specifes a “procedural” requirement of nonexploitation. Tat is because the alternative option—​one that defends “substantive” principles for the division of a cooperative surplus—​ depends on the allegedly impossible task of identifying a set of goods and services that are genuinely a product of trading relationships, as opposed to a product of trade-​independent factors. I argued in section 7.3 that a procedural account will ultimately need to appeal to a substantive account if it is not to remain problematically incomplete, so the claimed advantage here is deceptive. However, it remains the case that we need an answer to this challenge if we are to feel comfortable shifing concerns about exploitative trading interactions to concerns about distributively unfair trading structures. Te more precise version of Risse’s and Wollner’s critique runs as follows.39 Te degree to which a nation benefts from trade depends on its endowments and choices, and every existing nation’s endowments and choices have been pervasively afected by centuries of trading. As a result, we can’t divide the gains that a nation receives from trade into “gains due to participation in trade” and “gains due to endowments and choices that are independent of trade,” as James’s account asks us to. Tere is no “trade-​independent” set of benefts to exclude from the cooperative surplus to which James’s egalitarian principle of justice applies. If James wants to retain his claim that all nations have an equal claim to trade-​related gains, in light of this fact, it looks

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like he must require fully global resource egalitarianism. Risse and Wollner do not recommend that shif—​they reject egalitarian distributive requirements outside the bounds of the state—​but they argue that James’s allegedly intermediate position, of international egalitarianism only with respect to gains from trade, on pain of consistency ends up being indistinguishable from that much more radical view (and is therefore subject to all of the criticisms that beset it). Tis critique, I  suggest, depends on a mischaracterization of James’s argument. He is not concerned to include within the cooperative surplus all gains from trade. He is only concerned to include those gains that derive from the specifc governed social practice of mutual market reliance that began in the mid-​twentieth century. James claims that the institutional architecture that arose out of the Bretton Woods Conference initiated a signifcantly distinct practice from the form of trade that occurred before it, and one with signifcantly distinct normative implications. We can, he suggests, distinguish the gains that contemporary trading nations derive from that regime from the gains from trade that they would have enjoyed had it not been instituted. Is this clarifed proposal viable? We cannot determine, down to the last penny, what exactly any nation has gained specifcally from participation within the post-​ WWII multilateral trading regime. However, we have good reason to think that the overall gains have been great. Most political economists agree that the existence of the multilateral trading regime has signifcantly increased global trade fows.40 And we do not, I propose, need a highly precise reckoning of the size of the cooperative surplus involved in order to make plausible claims about injustice in its division. Te outcome of the WTO’s Uruguay Round negotiations provides a good illustration. One 1993 study estimated that the result of the Uruguay Round would be a total annual gain of U.S. $270 billion, of which roughly a third would go to developing countries.41 As it turned out, the forty-​eight least developed countries may have lost U.S. $600 million a year in total (net) owing to the round.42 Assuming for the sake of argument that that has indeed been the case, what should we say about it with respect to justice? We can’t be certain that the diference in beneft between developed and developing countries hasn’t derived exclusively from regime-​independent factors, such as the countries’ size, chosen economic organization, natural resource endowment, and past good fortune. But the inequality seems much more likely to have been produced instead by a set of optional features of the structure of the regime, introduced during the round, which massively advantaged some participants over others. Developed countries achieved their aim of including intellectual prop­ erty, services trade, and investment under the regulatory framework of the multilateral trading regime, all of which benefted them handsomely. And the benefts promised to LDCs in return bore little fruit. Te promised OECD (Organization

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for Economic Cooperation and Development) agricultural reforms involved little substantive change in the degree of protection, the removal of textile and apparel quotas actually reduced the market access of smaller developing country exporters in favor of India and China, and most signifcantly, even those countries that did gain in these areas found their gains swamped by the costs of compliance with their new obligations, particularly the payment obligations that they incurred under TRIPS (Trade-​Related Aspects of Intellectual Property Rights).43 Tis outcome is not plausibly just. And the most plausible reason for saying so is that it violates a requirement of justice to distribute the real and substantial gains from the shared social practice fairly across participants. Tis response is motivated by an attitude that I will refer to as “idealistic pragmatism.” When doing political philosophy, we should, on the one hand, keep our theorizing reasonably tethered to the earth. Tis means paying close attention to the relevant social science—​for instance, concerning the question of whether or not the trading regime has in fact been consequential—​rather than relying on plausible but unsupported empirical generalizations. It also means requiring that the principles that one advances provide some form of substantive guidance concerning how to assess social, political, and economic structures. For instance, if we cannot determine, at least roughly, the set of goods to which a distributive principle applies, that is a genuine problem with the principle. Risse and Wollner are right to demand of James’s account that it deliver on both of these fronts. (I have suggested that it does.) Tat is the pragmatic component of “idealistic pragmatism.” It is driven by a view about the role of political philosophy, according to which the aim of the endeavor is—​not exclusively, but centrally—​to contribute to the resolution of real-​ life problems.44 At the same time, however, political philosophy shouldn’t be held hostage to the existing state of our knowledge and calculative capacities so much that highly plausible moral principles are abandoned in the face of what are essentially technical difculties. In the face of empirical obstacles to precise calculation, philosophers may need to shif to rules of thumb. (For instance: when very wealthy nations do exceedingly well, and very poor countries do exceedingly badly, out of a cooperative scheme in which both participate, we can safely assume that this is an unfair division of a cooperative surplus.) A good moral principle remains a good moral principle, even in the presence of some abstraction and indeterminacy. Tat is the idealistic component of “idealistic pragmatism.” Te good political philosopher, animated by a passion for genuine values having genuine practical upshot, is equally impatient with theorizing that aims too high (unsullied by the facts) and theorizing that aims too low (overly sullied by those same facts). Even if, on these grounds, we set aside Risse’s and Wollner’s general worries about construing justice in trade as a matter of the division of a cooperative

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surplus, concerns may remain about the specifc shape of the division that James recommends. Many—​including each of the exploitation-​focused theorists discussed in this chapter—​are skeptical of the claim that justice requires egalitarianism within transnational relationships. International relations, afer all, difer substantially from the domestic relations for which egalitarian principles of justice were, historically, developed, and those diferences seem normatively signifcant.45 A helpful response to this reasonable skepticism is to adopt a third and fnal attitude, which I will term “imaginative pluralism.” When developing a theory of justice, we should indeed be wary of the idea that the principles applying to one realm of human interaction can be applied, largely unaltered, to another. In fact, we should arguably operate with the opposite presumption: that diferent relations are likely to require diferent principles. Moreover, when approaching our subject, we should attempt to consider the full range of possible principles, as opposed to an arbitrarily narrowed set. It is all too easy, as the recent philosophical literature on global justice has repeatedly shown, to assume that the choice outside the state is between very minimal constraints—​of the kind that Risse endorses—​and full-​blown egalitarian requirements of the kind that James endorses. But the range of possibilities is surely larger than this. For instance, Joshua Cohen (with Charles Sabel) has helpfully suggested that what justice requires in the realm of global politics is a norm of inclusion, according to which “it is unjust when—​against the background of a cooperation-​organizing regime . . . the very urgent needs of some people are going unaddressed, although they could be addressed without large costs to others, whose circumstances are improving a great deal.”46 Whether or not this particular suggestion is correct, it usefully directs our attention beyond the stultifying “all or (virtually) nothing” dichotomy of minimalism and egalitarianism that, until recently, has characterized the feld. Te relevant moral here is that a theorist of justice in international trade can safely go beyond “procedural” concerns with exploitation to “substantive” distributive principles without committing him-​or herself in advance to a robust principle of distributive equality.

7.6  CONCLUSION Te aim of this chapter has not been to deny that millions of individuals, the world over, are in desperate circumstances that render them subject to grievous exploitation in the course of international trade. Of course they are, of course that fact is morally appalling, and of course we should do what we can, urgently, to rectify the situation. My claim here has been that the best way to understand and address this urgent problem is to frame it in terms of a broader and deeper injustice that is not,

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fundamentally, a matter of unfair advantage-​taking. I have argued that this reframing makes for better philosophy and, relatedly, for better practice. Philosophers of international trade ought to take advantage of it, if you will, while at the same time giving the concerns about exploitation that frst motivate many of us to worry about the conduct of contemporary international trade their own fair due.

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Notes * I am grateful to Debra Satz for her helpful comments on this chapter. Tanks also to Debra, Annabelle Lever, and Joan Berry for organizing the conference in celebration of Joshua Cohen’s work that was the occasion for writing the paper, and to Aaron James for acting as my discussant at the conference. And thanks most of all to Josh: virtuoso, advisor, friend, and mensch. 1. Hillel Steiner, “A Liberal Teory of Exploitation,” Ethics 94, no. 2 (1984): 225–​41. 2. Robert Goodin, “Exploiting a Situation and Exploiting a Person,” in Modern Teories of Exploitation, ed. A. Reeve (London: Sage), 166–​200. 3. Mathias Risse, On Global Justice (Princeton, NJ: Princeton University Press, 2012), 272. 4. Tis covers two types of cases: simple cross-​border purchasing of goods produced unjustly and more active on-​site involvement in unjust production (as when transnational corporations employ local workers or suppliers). 5. Risse, On Global Justice, 274. 6. Risse, On Global Justice, 355. 7. See Helena de Bres, “Risse on Justice in Trade,” Ethics and International Afairs 28, no. 4 (2014): 489–​99. 8. Mathias Risse, “Response to Arneson, de Bres and Stilz.” Ethics and International Afairs 28, no. 4 (2014): 511–​22; Mathias Risse and Gabriel Wollner, “Tree Images of Trade: On the Place of Trade in a Teory of Global Justice,” Moral Philosophy and Politics 1, no. 2 (2014): 201–​25. 9. Richard Miller, Globalizing Justice (New York: Oxford University Press, 2010) 10. Miller, Globalizing Justice, 1, 13, 230. 11. Miller, Globalizing Justice, 68. 12. Miller, Globalizing Justice, 70. 13. Miller, Globalizing Justice, 4. 14. Other treatments of justice in relation to international trade are focused on exploitation in a more limited way than those of Risse and Miller, by virtue of their narrower scope. Discussions of the ethics of sweatshop labor, for instance, frequently center on the idea of exploitation, but their authors don’t generally advance a position on the role of that idea in trade more generally. (See, e.g., Zwolinski and Snyder.) My concern in this chapter is with accounts, like Risse’s and Miller’s, that do have that broader ambition. 15. I lack the space to discuss other competing accounts. David Miller provides a very helpful critical taxonomy in his “Fair Trade: What Does it Mean and Why Does it Matter?,” Journal of Moral Philosophy 14, no. 3 (2017): 249–​69. 16. Aaron James, Fairness in Practice (New York: Oxford University Press, 2012). 17. What is this system? As trade relations deepen between nations, those nations become increasingly dependent on continued access to each others’ markets. If they are to beneft fully (or

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at all) from international trade, they must be able to minimize risks of disruption in their exports and imports. One way to do this—​the one adopted since 1947—​is for nations to collectively sign an explicit public commitment to maintain or increase market access, backed up by concrete coordination measures, such as the norms of formal nondiscrimination and reciprocity built into the WTO ( James, Fairness in Practice, 54–​59). 18. James, Fairness in Practice, 18, 221. 19. James, Fairness in Practice, 18, 213. 20. Miller, Globalizing Justice, 74. 21. James, Fairness in Practice, 19, 138–​40. 22.  Te last of these examples appears in Alan Wertheimer, Exploitation (Princeton, NJ: Princeton University Press, 1999). 23.  Te bullying language that trade negotiators sometimes use supports this charge. See U.S. Trade Representative Carla Hills’s warning during the WTO’s Uruguay Round that if the negotiations stalled, the U.S. would start “trade wars over all sorts of silly things”; cited in Miller, Globalizing Justice, 70. 24. James, Fairness in Practice, 179–​85. 25. Mathias Risse and Gabriel Wollner, “Critical Notice of Aaron James, Fairness in Practice: A Social Contract for a Global Economy,” Canadian Journal of Philosophy 43, no. 3 (2013): 398–​400. 26. Wertheimer, Exploitation, ch. 7. 27. See Miller, “Fair Trade.” Miller argues that both conceptions are fundamentally indeterminate. Te competitive market conception runs up against the difculty in deciding “what should be counted as among the conditions for a fully competitive market, and what should be treated as external factors that participants bring to the market itself ” (257). Te labor conception faces the difculty of combining the multiple dimensions of labor—​skill, intensity, efectiveness of application, etc.—​into a single index of value ( 262). One might also have doubts about the normative signifcance of competitive markets and the counterintuitive implications of the labor theory of value when applied to particular cases. 28. See James: “[I]‌f there is a social contract rationale for lifing fairness expectations from the wage bargaining table, they are not eliminated but rather shifed to international expectations and the negotiations that shape them” (Fairness in Practice, 313). 29. Miller, Globalizing Justice, 70. 30. Miller, Globalizing Justice, 72. 31. Risse and Wollner, “Tree Images,” 211n11. 32.  Note that if one denied that justice were exclusively associative, exploitation-​focused theorists would have a much larger problem on their hands. Tat’s a line of critique that I don’t pursue here. For my reasons, see Helena de Bres, “How Association Matters for Distributive Justice,” Journal of Moral Philosophy 13 (2016): 161–​86. 33. See https://​www.wto.org/​english/​tratop_​e/​devel_​e/​a4t_​e/​aid4trade_​e.htm. 34. Such “WTO-​plus” and “WTO-​minus” conditions have included stricter tarif bindings and lower tarif peaks, much more extensive liberalization of service sectors and denial of accepted “special and diferential treatment” rights. See United Nations Development Program, Trade on Human Terms:  Transforming Trade for Human Development in Asia and the Pacifc (India: Macmillan, 2006), 131–​33. 35.  See Aaron James, “Equality in a Realistic Utopia,” Social Teory and Practice 32, no. 4 (2006): 699–​724; “If less economically developed countries are indeed supposed to have a chance

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to beneft from access to the global markets that already afect them, trading nations bear responsibility for the roads, communications and other infrastructure needed to make that chance real. To the extent that this requires new and better funded multilateral development institutions, their creation is . . . the fair price, as it were, of a common practice of mutual market reliance” (717). 36. Miller, Globalizing Justice, 62. 37. An exploitation-​focused theorist could insist that, to the extent that an injustice is in fact present in such cases (which might be doubted), it can be explained in terms of exploitation. It might be suggested that any resistance to diagnosing it as such can be explained by its being a relatively minor instance of exploitation (morally less urgent than instances involving rich-​poor interactions). I accept that diagnosis as a possibility, but fnd it a very implausible one. 38. As a nice example of this, see James’s persuasive discussion of the way in which a variety of specifc practical concerns about fairness in trade (e.g., relating to “fair bargaining,” “fair wages,” “fair prices,” and “fair competition”) can be sympathetically recast as aspects of a broader concern with “structural equity” in the trading system as a whole ( Jamess, Fairness in Practice, 156–​63). 39. Risse and Wollner, “Critical Notice,” 398–​400. 40. See Judith Goldstein, Douglas Rivers, and Michael Tomz, “Institutions in International Relations: Understanding the Efects of the GATT and WTO on World Trade,” International Organization 61 (2007): 37–​67. 41. Organization for Economic Cooperation and Development, “Assessing the Efects of the Uruguay Round,” in Trade Policy Issues 2 (Paris: OECD, 1993). 42. Joseph Stiglitz and Andrew Charlton, Fair Trade for All (New York: Oxford University Press, 2005), 47. 43. Finger estimates that, for China, TRIPS generated payment obligations that were fve times larger than the gains from goods liberalization achieved in the Uruguay Round. See J. Michael Finger, “Implementation and Imbalance:  Dealing with Hangover from the Uruguay Round,” Oxford Review of Economic Policy 23, no. 3 (2007): 440–​60, 456. 44. See Joshua Cohen: “[P]‌olitical philosophy is a practical subject. It is obviously practical in its focus, on institutions, practices and conduct. But it is also practical in one of its central purposes. Tat purpose is to orient and guide conduct in the social world, not only to understand the social world, or to judge its moral quality”; Joshua Cohen, Te Arc of the Moral Universe and Other Essays (Cambridge, MA: Harvard University Press, 2010), 1). 45. One diference that political liberals such as Cohen would emphasize is an even greater diversity of moral values and political commitments. 46.  Joshua Cohen and Charles Sabel, “Extra Rempublicam Nulla Justitia?,” Philosophy and Public Afairs 34 (2006):  147–​75. Cohen and Sabel emphasize that “the focus of concern is not distinctively egalitarian:  not that some people are better of than others, nor that some improvements are larger than others; nor is there any assumption that all inequality requires an especially compelling justifcation. . . . Te concern . . . is not with a failure to treat [people] as equals, owed equal concern, status, and opportunity, but with inclusion. Some people are treated by consequential rule-​making processes as if, beyond the humanitarian minimum owed even in the absence of any cooperation, they count for nothing” (154).

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8 Sovereignty and Complex Interdependence Some Surprising Indications of their Compatibility

Charles Sabel

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8.1  INTRODUCTION A little more than a decade ago, Tomas Nagel published a thoughtful but, as it then seemed, rearguard defense of the distinctive moral integrity of the sovereign state.1 In Nagel’s view, only when the citizens of a polity are the co-​authors of the laws that bind them does the implication of their wills subject the procedures and substance of law making to the requirements of egalitarian justice. Nagel acknowledged the numerous rule-​based regimes and institutions that regulate cooperation among private actors and states beyond sovereign borders, ofen circumscribing domestic law making, sometimes with direct consequences for individual citizens and frms. But these international organizations trace back to contracts among sovereign states: contracts that do not directly implicate the will of citizens, and therefore, Nagel argued, do not trigger the obligations of justice. Outside the state, Nagel concluded, the only obligations we have toward others are those prescribed by a humanitarian minimum. Joshua Cohen and I  challenged Nagel’s conclusion as inconsistent with the demands for accountability and responsiveness even then legitimately placed on international organizations and acknowledged by them.2 We argued that the notion of an implication of will was simply too malleable to serve as the sole trigger for the requirements of justice. Nagel himself acknowledged that colonial or occupying powers could implicate the will of those subject to their authority merely by 201

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imposing rules on them, regardless of their consent. Could not the same be said for the International Monetary Fund (IMF) or World Trade Organization (WTO) in the many cases where nominally sovereign states are constrained by circumstance to accept conditions and rules dictated by these organizations, as prerequisites for engagement in global capital markets or commerce? Why, moreover, should the contractual origins of these and similar institutions relieve them of the responsibilities of justice in regulating the international conditions of cooperation? Surely it is the efective operation of an institution, not the formalities of its origin or status, that determines its moral responsibilities. How, otherwise, can we understand why an occupying power triggers a responsibility of justice in governing the occupied? Tus, while we agreed with Nagel’s rejection of cosmopolitan (and any other) monism—​the idea that a single set of norms governs individuals in all circumstances, though the implication of the norms may difer according to the setting—​we rejected for all these considerations a dualism that applied norms of justice within sovereign states and a humanitarian minimum outside. Connecting to a line of thought that reaches, in only one of its branches, from Locke to Rawls, we argued instead for a pluralist political morality, in which norms applied to a relation or association among persons vary according to morally salient features of that relation. More exactly, we argued that international cooperation and mutual dependence embodied in institutions and rule-​based regimes created obligations of membership and inclusion: that the well-​being of those afected by the operation of such institutions and regimes be taken into account in determining the process by which they make decisions and what those decisions may permissibly be.3 Apart from a conjecture that one day the WTO might require all trade rules be standards based, and require that all standards allow in their application for adjustment to national contexts, we were silent about the relation among the plural norms inevitably generated in a world of interdependence at various scales. Yet, we had not challenged the distinctive importance of state sovereign as the vessel and expression of democracy. Our argument was, rather, that democratic sovereignty was not distinctive in a way that precluded many other norms of justice beyond the state, in the global realm. Tus, the reader might be lef to wonder how conficts between norms arising from domestic legislation or administration and norms arising in international regimes or in disagreements between national democracies were to be resolved in a plural order that did not rank them hierarchically? Using Nagel’s dualism as a foil allowed us to distinguish pluralism from cosmopolitan monism with some precision, without requiring exploration of conspicuous tensions within pluralism as a freestanding system. A decade ago, the incompleteness of our claims may have been excusable. History seemed very much on our side. International organizations and regimes were

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becoming more assertive in setting the terms of global exchange and cooperation; their independent capacity to generate norms binding on states, and individuals and frms within them, was ever more openly acknowledged; and this rule making was more and more explicitly subject to norms of transparency and requirements of reason giving in the justifcation of decisions familiar from the democratic practice of the administrative state. Nagel’s arguments seemed to preclude the debate in progress about how to understand and advance these developments. In recent years, history has, let us say noncommittally, taken a breather. Within the rich nation-​states, the idea of egalitarian justice for citizens is ofen turning, under populist pressure, into a welfare-​state chauvinism:  equal and generous treatment for the sons and daughters of the people, but the exclusion of the others. Te very idea that international cooperation creates obligations toward those it afects is becoming in some quarters a trammel, like the constitutional judiciary and the separation of powers, on the people’s rights to pursue their interests. If treaties do not serve our interests, we remake them to our advantage. Te United States has withdrawn from pending agreements, such as the Trans Pacifc Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), and insists on renegotiating longstanding ones, such as the North American Free Trade Agreement (NAFTA). Nor is criticism of interdependence and trade restricted to indignant and despairing populists and their political leaders. Many thoughtful advocates of social democratic solidarity within the traditional, inclusive welfare state, and of domestic diversity and opening to the world, have reluctantly concluded that rule-​making by international (or, in the case of the European Union, or EU, supranational) regimes and institutions leads inevitably to technocracy; and under technocracy, the alien norms of the global market displace national democracy.4 So long as there is no global demos and with it a global, democratic state, there is no method of accountability or political oversight to reconcile democratically legitimate diferences in domestic values with the uniform rules of world trade. Te protection of democracy and social solidarity requires reassertion of sovereignty. Te favoring breezes of plausibility that propelled our argument along have thus swung around and gathered strength. A harsh wind now blows globalization back, driving the very idea of pluralism onto the shoal. And yet, and yet. Even as the incompatibility of democratic sovereignty and globalization is hardening into a theoretical necessity, practice is demonstrating, at least in some realms, their compatibility. A closer look at the development of trade negotiations, I  will argue, shows that trade agreements among rich countries, as well as between them and middle-​income partners—​unmediated by the WTO but mindful of its norms—​have reduced tarifs to negligible levels and come to focus

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on reconciling regulatory diferences. As attention has shifed to these non-​tarif measures (NTMs), institutions and practices have emerged that allow partners, sector by sector, deliberately to investigate and learn from one another’s practices, eventually recognizing the equivalence of regimes that are not strictly identical—​ and in the process extending domestic political oversight to relations among states while ofen heightening domestic accountability. Tese institutions and practices have developed in the last decades in persistent cooperation among regulators in sectors as diferent as civil aviation, food, and pharmaceuticals. Tey have been little noticed, except in broad outline, by trade specialists, and have registered, if at all, as a conspiracy among experts by the larger public. Absent a trade war or still greater calamity, these innovations will likely survive, and perhaps thrive, even if the new “vintage” trade agreements that openly acknowledge their centrality are not consummated. Tese emerging institutions of regulatory equivalence amount to a kind of existence proof of what much contemporary theorizing denies: the possibility of integrating democracy and normative engagement beyond the nation-​state. Te aim of this chapter is to document some of these developments and begin to draw out their implications for the democratic governance of trade and the international order generally. Tis intent explains, and I hope justifes, the focus here on only one slice of the broader question of relations among norms in a plural order, in disregard of the many urgent questions of distributive justice rightly raised in connection with current trade arrangements (and addressed, in part, in a longer essay on current trade negotiations on which this one draws).5 To underscore the generality of the sovereigntist argument in current discussion, and the diferent starting points from which it is reached, section 8.2 looks briefy at two variants of the concern about an inevitable confict between supranational technocracy and domestic values: one focused on the tension between the WTO and national democracy, and the other on the fault line between EU and national or member-​state regulation. Section 8.3 sets out the circumstances of international exchange as they are, and for the most part are expressly assumed to be, in the “mega-​ regional” trade negotiations within the club of rich nations—​for instance, between the EU and the United States in TTIP. I say the circumstances are for the most part expressly acknowledged in trade discussion because the institutional details of sectoral regulatory cooperation—​crucial to understanding the way plural values are actually being deliberately reconciled in trade—​are incorporated by very general reference in trade documents. Trade negotiators (as opposed to regulators) ofen have little direct knowledge of them. Te public knows still less, but enough to suspect that it is being kept in the dark; trade economists treat regulations largely as costs and pay scant attention to changes

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in the nature of regulation itself; and political economists attend to the coalitions for and against more trade—​today, a division between business (largely for) and civil society (largely against)—​not the substance of their disagreements. Section 8.4, therefore, presents two detailed, illustrative case studies to suggest how sectoral regulatory equivalence works in practice, and how the reciprocal monitoring it establishes can be at once preference transforming, sovereignty respecting, and accountability enhancing. Section 8.5 addresses an apparent chink in this armor of accountability. It traces successive changes in drafs of the EU’s TTIP treaty proposal to demonstrate how the initial exploration of the possibility of reconciling regulatory diferences, now widely seen as opening the door to special interests and insider manipulation, can be subject to the same kind of democratic oversight provided by reciprocal investigation of regulatory practices once a regime of equivalence is established. Section 8.6, by way of conclusion, reviews the incremental enlargement and reconceptualization of sovereignty through determination of regulatory equivalence as a response to the various assertions of the incompatibility of domestic and global or EU norms. More speculatively, this response is presented as a distinctive mechanism for the step-​by-​step construction of a kind of federated international regulatory authority—​a novel realization of Kant’s “negative surrogate” for a world state—​because this cooperation arises not, as conventionally thought, from the displacement of politics by economic interests or the reverse but, rather, by the ongoing redefnition of each provoked by diferences regarding the other. Tese arguments roll over outstanding intellectual debts. In redeeming some of the original claims, I incur new obligations, to be met, I can only hope, through a renewed collaboration. In that spirit, think of this chapter as restarting the earlier one, informed throughout by the same commitment to defend the political and intellectual debate against skepticism about practical possibilities that, in the intervening years, has become all the more paralyzing because it sees global cooperation itself as a threat to sovereignty as a condition of democracy.

8.2  OTHER ROADS TO THE SOVEREIGNTIST TURN Perhaps the most general formulation of the thesis that globalization is incompatible with national democracy is Rodrik’s globalization trilemma.6 It does not invoke Nagel’s implication of will as a distinctive, norm-​generating criterion, but it does conclude, by a closely related argument, that there is a practically unbridgeable gulf between the nation-​state as a repository of value and the rules of global commerce. A  key assumption—​fully validated, as we will see, by the centrality of normative

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concerns in current trade discussions—​is that markets require complementary regulatory regimes specifying the characteristics that various goods, and the processes by which they are produced, must possess to be merchantable. Tese regulatory regimes can refect the plurality of values (equity as between partners in exchange; concern for the environment and other externalities) that historically condition commerce in the democratic nation-​state, or they can respond only to the concerns of efciency as technocrats, dedicated to minimizing market friction, understand them. A corollary of the complementarity of markets and regulation is that global markets require a global regulator. Te incompatibility of globalization with the democratic nation-​state follows directly. For suppose that the global regulatory regime is centered in a technocratic body, established by treaty among states the world over, but only remotely accountable to them. In this case, the nation-​state persists, but democracy must defer to the technocratic decisions that foster globalization. More exactly, the outcome is what Rodrik calls “hyper globalization,” or deep integration: the condition where the uniformity of the global market approaches the uniformity of domestic ones; but precisely because it is homogeneous, it cannot accommodate the complex of values that legitimate exchange in any particular place. But imagine, as an extravagant and indeed otherworldly counterfactual, that the global regulator is democratically responsive to a global polity. In that case, there is globalization and democracy, but the nation-​state is displaced. Tere could be disagreement about whether this global democracy is subject to the obligations of egalitarian justice, because democracy, at any scale, implicates the wills of citizens. But we would be discussing a phantom. Te only democracies we know live in the nation-​state. If, fnally, we choose to safeguard living democracy in the nation-​state, we must forgo economic globalization because, given the implausibility of a world-​spanning democracy, there is no acceptable global regulator for global markets. Hence the trilemma:  choose as we will, we cannot have the advantages of democracy, the nation-​state, and globalization at the same time. Te real choice, Rodrik argues, is between the technocratic regime we have—​and the wave of anti-​globalization its denial of other values inevitably provokes—​and a return to the pre-​W TO rules of the trade, which prevented the cascades of protectionism that destroyed world trade in the 1930s but otherwise lef nation-​states largely free to regulate themselves as they chose. Scharpf ’s call to sharply curtail the powers of the EU, and even repatriate some of its authority to the member states, is rooted in the distinction, introduced by Tinbergen, between positive and negative integration.7 Negative integration, or market making, refers to the removal of barriers to trade, such as tarifs or NTMs.

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It is inherently deregulatory. Positive integration refers to market-​correcting measures: health and safety regulations, rules governing permissible terms in contracts, transfer payments from winners to losers in the operation of markets—​in general, all measures that ensure market exchanges respect public values. We might say that positive integration embeds the economy in society, setting aside the question of the degree to which society is conceived as a self-​creating polity—​or, rather, is (in the manner of the German Genossenschafslehre) rooted in pre-​political afnities and associations. Scharpf ’s argument is that the EU, because of certain congenital defects in its design, has been extremely efective at negative integration while blocking positive, socially embedding reregulation. Generally speaking, the current situation is analogous to that of the United States before the New Deal, when the Lockner jurisprudence of the Supreme Court obstructed state and local regulation of markets, and Congress had not yet authorized national supervision. Te Court of Justice of the EU (CJEU) accordingly plays an important part in Scharpf ’s account. Because it was founded to defend economic freedoms (free movement of goods, capital, services, and people), and because, as a court, it is not in principle authorized to consider other values except to the extent expressly permitted by legislation (limited in the EU by jurisdictional constraints), the CJEU acts directly and indirectly as an engine of deregulation:  directly by removing NTMs (Cassis de Dijon), and indirectly by an expansive defense of economic freedoms that undermines collective-​bargaining regimes, social insurance systems, and the other institutions that together ensure positive integration. In efect, then, the CJEU, in consort with market-​friendly directorates in the EU executive or Commission, functions as the equivalent of the global technocrats of the WTO to regulate the (hyper-​integrated) single market in the interests of efcient commerce, with disregard of national, democratic values. Tese design defects of the EU were magnifed by the fnancial crisis, making all the more urgent a clear limitation of EU authority and with it, greater scope for member-​state defense of national solidarity. Taken narrowly, as claims about the necessarily deregulatory efects of technocratic, peak regulators (the WTO and the CJEU), neither argument is empirically compelling. A recent, authoritative review of the jurisprudence of the WTO fnds that the Appellate Body (AB), far from actively advancing deep integration and hyper-​globalization, has lef ample room for national regulatory autonomy in the manner of the pre-​W TO General Agreement on Tarifs and Trade (GATT)—​to the disappointment, it seems, of the organization’s sponsors.8 Te CJEU has emerged as a defender of fundamental rights (to freedom of expression, in Schmidberger, or against age discrimination, in Mangold) even when these confict with economic freedoms. It prohibits unjust contract terms when national courts fail to ofer such

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protection. Many of the cases cited to suggest hostility to collective bargaining can be understood as criticism of opaque arrangements favoring insiders, and so on.9 But a narrow reading is irrelevant for present purposes. Both the EU and the world trade order embodied in the WTO are rightly seen as unaccountable in important ways; the globalization paradox and the tension between negative and positive integration capture the widespread anxiety that these defects cannot be addressed because there is, in fact, no way to make the participation in world markets required by economic development compatible with assurance that exchange is regulated in accord with domestic values, as required by democracy. Te goal of the remainder of this chapter is to provide a signifcant counterexample to the claim that national democracy is incompatible with world markets, or, put the other way around, an existence proof of the possibility of institutions reconciling them. 8.3  THE CIRCUMSTANCES OF GLOBAL EXCHANGE

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Here, in a highly compressed form, are the circumstances that shape the scope and the aims of the current generation of trade negotiations. While there is some disagreement about the developments underlying these shaping conditions, there is much less about the conditions themselves. I  focus on the latter, presenting only enough of my own view of the former to suggest why I  think the closely linked changes in the nature of trade and regulation have common causes in a transformation of production—​an argument that will fgure in the subsequent discussion. • Te successes of the WTO have reduced tarifs, especially among rich nations to nuisance levels—​the costs of collecting the duties ofen exceed the revenues they produce. • Te decrease in tarifs has led to greatly increased emphasis in trade negotiations on NTMs, particularly regulatory diferences regarding variant interpretation of the requirements of protecting public health and safety and the environment, and ways of determining that the requirements have been met. Tough these diferences are ofen subtle, they are also ofen of visceral importance. Among rich countries, none will abandon its commitments in favor of those of the others simply to encourage trade. • Tree profound, linked changes in the organization of production have redirected trade fows, making the reduction of NTMs all the more pressing. Te frst is vertical disintegration or the decomposition of production into discrete tasks accomplished by independent frms collaborating with many clients and linked to each other and the fnal producer in supply chains. Te

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more volatile and uncertain markets became, the riskier it was for vertically integrated mass producers to own component suppliers whose products could abruptly become obsolete because of unforeseen innovation or superfuous because of a shif in demand. Te second is the globalization of supply chains. Production facilities are located where the costs of production are lowest, or where they can serve important markets with distinct characteristics. Te third is the shif within these supply chains to just-​in-​ time or continuous-​improvement production and design systems based on immediate error detection and correspondingly short learning cycles. Mass producers hedged against breakdowns in operations by holding large bufer inventories of work in progress. Uncertainty dramatically increased the cost of these hedges, just as it increased the costs of owning suppliers. Firms responded by eliminating the bufers—​at the limit producing one piece at a time. Breakdowns thus stop production, and operations only resume when the disruption is traced to its source and corrected. Because of these changes, export products are typically composed of many imported components and subassemblies, leading to enormous increases in intra-​frm and intra-​ industry trade; delays and disruptions can be ruinously costly. As production itself becomes more and more dependent on untrammeled trade, and tarifs are eliminated, NTMs are of vital importance. • Tese changes are refected in a fundamental shif in the political economy of trade negotiations. Traditional trade negotiations pitted frms that stood to gain from exports against frms threatened by imports. Today, particularly in the transatlantic negotiations, the overwhelming majority of politically active companies are in favor of NTM costs, though their regulatory preferences still difer. Opposition comes from consumer and civil society groups, who fear that negotiations aimed at reducing regulatory diferences will open the door to lowering standards and displacing jobs. • To reduce regulatory trade costs, the trade partners aim, where possible, to reconcile their diferences by establishing, sector by sector, the equivalence of regulatory regimes:  agreeing on the essential requirements imposed on regulated entities and demonstrating to each other, and the public, comparable rates of compliance, while allowing the means to these ends to difer from jurisdiction to jurisdiction according to variations in their circumstances. Reduction of trade costs can, in other words, only be achieved by clarifying shared values and establishing confdence that they are mutually respected, in ways specifc to each party. • As trade policy focuses more on the efects of regulatory diferences, the nature of regulation is changing in ways that refect the changes in production,

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and that complicate the determination of equivalence. Because of increasing uncertainty—​especially the inability to anticipate hazards produced by new, globalized methods of production and the increasingly rapid combination of novel technologies in new products—​the regulator’s traditional emphasis on fxing conditions for market operators, and assuring continuing compliance with them, is being complemented by greatly increased attention to detecting and responding to latent hazards unnoticed when products initially are approved for sale. Tis change is marked by the difusion of requirements, mandated by public regulation and by private standards enforced by contract among supply-​chain partners, to report breakdowns in control that threaten the safety of products or production processes, to trace these incidents to their source and root cause, and to take corrective and preventative action. Te just-​in-​time disciplines that enable smooth operation within supply chains also equip frms to detect and report such breakdowns. • Tis response to latent hazards requires not only that trade partners currently achieve essentially equivalent results but also that each regulator demonstrates to the other a comparably robust capacity to learn from mistakes and advances—​its own and others’—​and update its requirements and methods accordingly. Te warranty of a system’s equivalence to others safeguarding similar values is thus not just its ability to ensure compliance at some acceptable level and rate, but also its ability to improve from its regulatory shortfalls. Te trade goal of regulatory equivalence thus entails close ongoing collaboration among regulatory ofcials—​on the ground, inspecting facilities and products, and in high management—​in interpreting existing rules and devising new ones, while allowing for continuing diferences in the way shared outcomes are achieved. • At its best, such international collaboration allows regulators to learn from one another, improving their ability efectively and accountably to defend the values entrusted to them. When this is so, reductions in trade costs and improvements in regulatory control of markets—​refecting shared values and respect for persisting diferences—​can be complementary, not conficting, and sovereign self-​determination can be reconciled with the stepwise extension of economic exchange and regulatory cooperation. By the same token, continuing a mutual review can heighten domestic political accountability. • Te WTO, because of political blockages among its highly diverse members and internal organizational rigidity, is incapable of addressing NTMs and the eforts leading to regulatory equivalence. Te major developed trading

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nations have therefore sought to establish frameworks for (sectoral) regulatory cooperation by negotiating mega-​regional agreements. • Under pressure from a skeptical public, this regulatory cooperation is, in recent treaty drafs, methodically subjected to political oversight at every step so that close collaboration does not become a cabal of experts acting out of sight of the public. Tis stylization of the facts of global commerce omits prominent questions regarding the scope of investor protections against expropriation by host states (investor–​state dispute settlement, or ISDS) and protection of rights to intellectual property. If expansive interpretations of those rights win out, much of the discussion about regulation would be vexed and the space for domestic policymaking sharply constrained. But the concern here is not with the near-​term future of trade agreements but, rather, with the way current developments may enlarge our understanding of sovereignty and democratic accountability in a world of plural values. For this reason, we set these justly controversial issues aside and look at the operation of sectoral regulatory cooperation in practice.

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8.4  INTERDEPENDENCE AND REGULATORY EQUIVALENCE: TWO EXAMPLES In a world where inputs are globally sourced and potentially hazardous products globally distributed, regulatory systems must encompass relevant trade partners to be efective. Te drive to establish regulatory equivalence between trade partners with similar values follows directly from this mutual, imperative need to determine whether each party’s hazard-​detection systems in operation warrant the confdence of the other. Put generally, when globalized co-​production of innovative products introduces latent hazards, the national regulatory systems that provide early warning of possible dangers and quick responses to breakdowns must be able to rely on one another’s oversight of the linked producers. Tis, in turn, leads to ongoing scrutiny of partners’ regulatory practices in particular domains and, in the light of investigations and deliberations that diferences and failures provoke, mutual adjustment—​without jeopardizing the right of unilateral withdrawal from agreements that is the continuing prerogative of sovereignty. Te steps leading to the Food Safety Systems Recognition Arrangement—​a declaration of regulatory equivalency—​recently signed by the U.S. Food and Drug Administration (FDA), the Canadian Food Inspection Agency (CFIA), and the Department of Health of Canada (HC) provide a frst illustration of the general

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tendencies prompting closer regulatory coordination. Above all, a look at the process of establishing equivalence draws attention to exacting reciprocal scrutiny of regulatory ends and means—​and thus presumptively to heightened possibilities for domestic review and accountability in the partner countries—​needed to establish confdence that equivalence can work. In the United States, outbreaks of food-​borne illness transmitted by leafy greens (especially dangerous because ofen eaten raw) led California wholesalers to create in 2006 a regime—​contractual, but enforced by a state inspectorate—​requiring growers to conduct a hazard analysis of the critical control points (HACCP) review of their farms, identifying the points at which pathogens could enter the production process, and proposing and testing methods of avoiding or mitigating those risks. Te Food Safety Modernization Act (FSMA) of 2010 codifed this regime, extended it to many more products under the jurisdiction of the FDA, and established procedures for responding to breakdowns in controls. As the United States was modernizing its food safety legislation, Canada was doing the same: like the FSMA, the Safe Food for Canadians Act (SFCA), passed in 2012, mandated HACCP controls for the entire supply chain, incident reporting, and traceability; and like the FSMA, the SFCA anticipated close cooperation with the regulators in key trading partnerships. For both countries, the determination proceeded in two steps:  frst, a careful desk review of the partner’s standards and procedures to ascertain how general organizational goals are translated into specifc standards and routines, and to verify that the routines are routinely followed. Ten, observation by feld teams of the partner’s audit of a range of food-​processing plants and reference laboratories to understand how experience on the ground is translated into decisions and documents. Te FDA’s desk review began with the development of an International Comparability Assessment Tool (ICAT) for assessing the robustness of a trading partner’s food safety system in ten domains, such as inspections and responses to outbreaks of food-​related illness.10 A capable partner authority is expected to conduct “periodic self-​assessments and quality assurance reviews” of its inspection and other programs to “determine areas or functions . . . that need improvement, to develop improvement plans and to establish timelines for implementing improvements”; similarly, a robust food-​safety system is expected to include periodic review of enforcement actions “to assess areas in need of improvement or corrective action,” and update “policies and practices based on fndings.” Te ICAT review also included presentation by Canadian ofcials at the national and provincial levels of case studies that, starting with source documents such as audit reports, documented the chain of decision-​making in particular product recalls and enforcement actions against frms, allowing the U.S. reviewers to determine whether the information generated

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by the Canadian food-​safety system was efectively used to serve its expressed goals. Tis extended desk review was then complemented by weeks of site visits in which a pair of three-​member, interdisciplinary U.S. teams (one in the West of Canada, one in the East) prepared to shadow Canadian inspectors in various plants by reviewing their training records, then observed the actual inspection of processing facilities, with attention to the records consulted and interactions with key managers. Te entire process is meticulously described in a report in which the FDA reviewers recommend “a positive fnding of system recognition”—​current FDA lingo for a determination of regulatory equivalence.11 As a second example illustrating the trajectory and governance mechanisms of sectoral regulatory collaboration based on continuing mutual scrutiny, consider the agreement on “cooperation in the regulation of civil aviation safety” or Bilateral Aviation Safety Agreement (BASA) entered into by the United States and the EU in 2011.12 Civil aviation is, like pharmaceuticals, among the most rigorously and successfully regulated industries:  passenger fatalities per 100  million passenger-​ kilometers fown globally in commercial air transport fell from 0.8 in 1960 to 0.08 in 1980 and 0.03 in 1990; since then it has ranged between 0.05 and 0.01.13 Te International Civil Aviation Organization (ICAO), formed under the Chicago Convention on International Civil Aviation in 1944, provides the framework for international regulation in the sector. ICAO establishes a “mutual acceptance” regime in which the certifcation by one signatory that equipment or fight crews under its jurisdiction meet ICAO standards is accepted by other signatories. Mutual acceptance does not amount to agreement of regulatory equivalence, for three reasons. First, ICAO only establishes minimum standards; more demanding jurisdictions such as the United States, the EU, Japan, China, Brazil, and Canada insist on more rigorous ones. Second, innovation outpaces the capacity of ICAO’s 191 member states to establish new standards, so, for example, it may be impossible to certify designs for next-​generation equipment under ICAO. Tird, even when standards are available and acceptable to all parties, the capacity and willingness to engage in conformance testing varies greatly among the signatories, and some will not accept the certifcations of the others.14 For all these reasons, the states insistent on higher civil aviation standards enter bilateral agreements with peers. Beginning in 1996, the United States negotiated BASA’s formal framework agreements in which the partner countries by treaty or executive order authorize their respective air safety authorities (called technical agents, or TAs) to scrutinize each other’s practices and treat those found equivalent as common technical implementation procedures (TIPs) for certifcation purposes. Of these agreements, the EU–​U.S. BASA, covering principally the airworthiness of equipment from design to manufacture and maintenance, as well as conformity to

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environmental standards, is the most comprehensive and developed, with a formal governance structure for resolution of disputes and possible extension of the agreement to additional areas of air safety.15 Like the ICAO, the EU–​U.S. BASA establishes the principle of mutual acceptance, but in a distinctive sense: each party insists on compliance with its own, distinct standards, but agrees to rely “to the maximum extent practicable” on the other party’s certifcations that its products or services do so.16 Formally, this means that an Airbus designed in the EU must be certifed by the TA in the EU, the European Air Safety Agency (EASA), as meeting the airworthiness or “type” requirements of the TA in the United States, the Federal Aviation Administration (FAA), and that a maintenance station in the United States repairing Airbus equipment must be certifed by the FAA as meeting EASA standards. But in practice and by design, this kind of reciprocal acceptance of compliance certifcations shades into collaboration and de facto recognition of the equivalence of many standards. With regard to maintenance stations, each authority determined before entering the agreement that the other’s basic system for quality control and reporting was equivalent to its own, and listed separately in the maintenance annex to the BASA a small number of “special conditions”: “requirements [in the relevant regulation of either party] that have been found, based on a comparison of the regulatory maintenance systems, not to be common to both systems and are signifcant enough that they must be addressed.”17 Tus, EASA can certify a repair facility in the EU performing work on U.S.  equipment as meeting FAA requirements only if it complies with EASA’s standards and meets the special conditions defned by the FAA.18 Similarly, in certifying the design of new aircraf types, the authorities frst determined the equivalence of their respective methods of ascertaining an organization’s qualifcation to produce reliable aircraf designs and a manufacture’s capacity to maintain a reliable quality control system, and then provided for the exceptional cases where equivalence cannot be presumed. For example, early in the design process, when encountering novel, unregulated design elements (also called “special conditions”),19 the FAA and EASA, separately or together, can issue new standards maintaining “a level of safety equivalent to that established in the [existing] regulations”; likewise, either authority can waive the obligation to conform with a particular certifcation requirement when diferences are thought to be inconsequential, or fnd that diferent design features or test methods achieve an “equivalent level of safety.” Only if a diference in the scope and stringency of requirements does not fall under one of these exceptions will one of the authorities fnd a “signifcant standards diference” and (if further discussion does not resolve the issue) declare the diference a “validation item,” meaning that it will test for itself whether the

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other party has made an adjustment that meets its standard.20 Regulatory cooperation in the sense of enlarging the scope of reciprocal acceptance also extends to consideration of deep changes in the nature of design standards—​for example, from specifcations of permissible equipment to specifcations of the level of performance the proposed equipment must attain—​that refect the broad changes in the organization of production and the overall context of regulation set out earlier. Te governance structure created by the agreement is accordingly designed to encourage resolution of disputes arising under current arrangements but also to extend regulatory cooperation. As its name indicates, the Bilateral Oversight Board (BOB), including representatives of the TAs (and, for the EU, representatives of the member-​state regulatory authorities with continuing air safety jurisdiction), reviews progress under the BASA and sets the agenda for further reform. It is the fnal arbiter of disputes and has explicit authority to approve new, domain-​specifc annexes. A Certifcation Oversight Board, composed of representatives of the TAs with expertise in airworthiness certifcation and environmental testing, and a Joint Maintenance Coordination Board, with TA representatives whose expertise is in repair, coordinate the technical discussions between the authorities in their respective domains and whenever possible resolve disputes arising from those discussions, referring only intractable ones to the BOB. Tis ensures that disputes are normally resolved at relatively low levels of the administrative structure by persons likely to have deep knowledge of the issues, rather than by higher authorities with limited understanding of current practices. If a party, afer the fruitless pursuit of a remedy, loses confdence in a class of approvals issued by the other, it suspends acceptance of only that kind of approval, without disturbing the remainder of the agreement. Because of this severability, each authority understands that the other could indeed act on a particularly vehement objection to a test or standard without fear of precipitating a political crisis; the credibility of this threat has a deterrent efect that reduces the chances that the power of partial suspension will actually be exercised. But perhaps civil aviation and food safety are exceptional cases, and not, as suggested here, examples of general tendencies in the development of regulation and regulatory cooperation? A recent study of the EU–​U.S. BASA raises this possibility, arguing that the role of ICAO as an international standard setter and the high degree of ex post liability for aviation accidents—​the near certainty that negligence will be uncovered and heavily sanctioned—​make the case unusual, if not singular, and caution against generalization.21 But this particular argument at least is unpersuasive. Industry-​specifc organizations with the authority to set minimum standards for their members and to frame the agenda for further reform are today pervasive, if not ubiquitous. Te Codex Alimentarius plays this role globally for food safety (helping to difuse HACCP-​based regulation), as does the International

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Maritime Organization in maritime safety, the Forest Stewardship Council (an NGO convening stakeholders to set standards, many of which are treated in efect as guidance to compliance with public regulation)22 in forestry products, and the International Conference on Harmonization in the area of pharmaceutical regulation, initially among regulators in the United States, the EU, and Japan, and now globally. None of these organizations or the many others like them displaces national, bilateral or (mega-​)regional regulation any more than ICAO displaces the FAA, the EASA, or the results of their cooperation under the EU–​U.S. BASA. In all these cases, the “global” standard setter, whatever its actual scope, provides an invaluable forum for crystallizing consensus, exposing new ideas and initiatives to informed criticism, generalizing successes, and at times calling attention to egregious cases of noncompliance with minimal norms. But whatever their exact role, these organizations are a common feature in the current regulatory landscape, not a distinctive outcropping that can explain the outcome in civil aviation or any other particular sector. Ex post liability, too, is becoming commonplace. Te spread of incident reporting systems, including the obligation to trace serious defects to their source, together with the spread of just-​in-​time production, makes it harder and harder to escape liability for negligence: faults are registered in the course of production and failure, especially repeated and systematic failure, to take corrective action makes it difcult to disclaim liability. Imminent changes, suggested again by the trajectory of civil air regulation, could well make liability all but inescapable. Trough the 1970s, improvements in air safety largely resulted from investigation of aircraf accidents. As the number of accidents declined, reports of incidents—​out-​of-​control events that could lead to accidents—​ spurred further improvements. As the number of incidents declines, ICAO now argues that emergent hazards are best detected by continuous, real-​time monitoring of engines and aircraf.23 Tis example, too, could be multiplied. Still, the cases presented might be exceptional on other grounds. However much they might ramify—​ aircraf safety involves design, manufacturing, maintenance, and operations; food safety spans farms, processing, and retail distribution—​these domains may be discrete or bounded in the sense that they do not implicate what we might think of roughly as core sovereign prerogatives such as the monopoly control of force or the power of taxation. Regulation in other areas might, however, lead to such a “sovereigntist” ascent, the anticipation of which might stop eforts at mutual accommodation through regulatory equivalence before, or as they begin. A case in point might be banking and other fnancial services, where, as the recent fnancial crisis showed, failures of regulation in one jurisdiction can be rapidly transmitted to others, with catastrophic consequences. Within the EU, for

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instance, eforts to establish regulatory equivalence in banking—​passporting in the jargon—​may have touched of such an upward progression. To list only the most prominent reforms under discussion: regulatory equivalence requires equivalent systems of deposit insurance; of resolution of insolvent banks; of common, risk-​adjusted capital reserve requirements (which must be compatible with Basil IV international standards now under construction); and of a “single rule book” for evaluating the underwriting practices of systematically important and ordinary banks.24 Perhaps these regulatory domains are so intertwined that they can only be managed by a single, central authority, so the search for mutual adjustment through regulatory equivalence results in the creation of a de facto banking or fnancial-​markets sovereign, if not a new sovereign tout court? If there were many such domains, regulatory equivalence would remain marginal and the choice might be, in fact, between a global technocracy and more or less democratically accountable mega-​regional ones. But there are important counter-​considerations and counter-​evidence. Te main counter-​consideration is that under uncertainty, regulatory homogeneity is unacceptably risky. Imposing uniform rules (for example, treating sovereign debt as riskless) is a receipt for disaster when, as all but inevitably happens, some of the uniform rules are inapplicable or unintentionally induce risky behavior themselves. By the same token, uniform requirements choke of the exploration of diverse, contextualized responses to local conditions and with them the possibilities of mutual learning that, as argued repeatedly here, is indispensable to rapid adjustment under uncertainty. Tese considerations are very much in evidence in the EU debate on banking reform, as counterweights to arguments for centralization and uniformity. Te chair of the Supervisory Board of the European Central Bank, which helps create the framework for and monitors the results of banking supervision in member states, cautioned against “pursuing a one-​size-​fts-​all supervision” in favor of an approach that ensures “consistency across institutions and supervision tailored to credit institutions’ specifcities” to “accommodate banking diversity”—​ considered to be “very desirable from a fnancial stability perspective.”25 How to institutionalize a framework maintaining consistency while allowing and learning from diversity—​the stuf of regulatory equivalence—​remains an open question in this and other domains. But in this case, at least, the apparent exception accords with the rule.26 Further examination in the light of yet more experience may show that these examples are outliers, not forerunners. But, for now, we will regard them as illustrative of the broad changes reshaping regulation as regulation becomes more and more central to trade.

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8.5  MAKING REGULATORY COOPERATION MORE DEMOCRATICALLY ACCOUNTABLE Te regulatory cooperation just described results in agreements formalizing joint oversight and governance processes that meet the usual standards of administrative accountability in democracies, if only because they operate, as the case studies show, within and subject to the usual, domestic, administrative procedures. Regulatory cooperation culminating in recognition of regulatory equivalence may also provide, through reciprocal inspections and the like, richer and more timely information on (potential) regulatory failures, and therefore greater possibilities for stakeholders to articulate their interests than normally available in well-​functioning democracies. But because this deep cooperation emerges gradually, one sector at a time, ofen focusing on technical themes, and engaging the most immediately concerned stakeholders frst, it tends to escape notice until it is a—​formal—​fait accompli, and ofen continues unremarked afer as well. Can the process of reaching formal agreement to cooperate itself be subjected to formal democratic oversight, so that the ex post accountability provided by reciprocal monitoring and reporting is complemented and completed by ex ante democratic supervision of the steps toward agreeing on formal cooperation? Recent controversies regarding trade agreements have spurred careful refection on how this can be done. Te problem of democratically domesticating the early, tentative, and informal steps toward regulatory cooperation is politically urgent. To the skeptic, regulatory cooperation, as a series of distinct, ofen technical discussions among government experts and private interests, menaces democracy and sovereignty. Especially in its early stages, it is pervasive and difuse to the point of near invisibility: to authorize regulatory cooperation is to invite foreign ofcials and stakeholders to sit in the innermost circles of domestic decision-​making, where they can weaken rules and subvert national values all the more efectively because they act out of sight. Fears of this kind have animated the widespread opposition of civil-​society organizations to mega-​regional agreements, including TTIP, as noted earlier. If nothing else, the extension of ISDS claims and their encroachment on domestic regulatory autonomy warrants such concern. ISDS originated as an extra-​territorial system of arbitration, anchored in bi-​and multi-​lateral treaties, to protect foreign investors from expropriation by predatory states. By incremental steps, it has become a system in which, at the limit, foreign investors can claim compensation for any change in government policy adverse to their interests, even if the change applies alike to both foreign and domestic investors and is decided under established and legitimate procedures. Although these claims are rarely successful, the very possibility of making them can have a chilling efect on regulation.

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To see how a general, hortatory commitment to exploring collaboration could be manipulated to chilling efect, take Article 9 of the 2015 EU draf chapter on regulatory cooperation. It provides that “[t]‌he Parties shall participate constructively in regulatory exchanges;” and that, beyond early notifcation of consideration of trade-​relevant measures (required in Article 5), “a Party shall provide to the other Party, if the other Party so requests, complementary available information related to the planned regulatory acts under discussion.” “Constructive participation” is an extremely open-​ended standard. By itself, it might entail almost nothing beyond civility. But given the diferences in the level of regulatory cooperation across sectors, cooperation in some domains will be very “constructive” indeed. A regulated entity might therefore challenge the validity of an unwelcome partner-​country measure on procedural grounds before a dispute settlement body (contemplated in the 2015 draf), arguing that the “regulatory exchanges” leading to the measure’s adoption fell short of the standard set by more extensive eforts between the parties. Or, the dissatisfed entity might demand more and more “complementary” information, aiming for “paralysis through analysis,” and raising the standard that regulators subsequently must meet to demonstrate “constructive” participation in cooperative exchanges. In these ways, the long-​term, cumulative efect of a general commitment to foster regulatory cooperation that on its face seems little more than an exhortation to comity would indeed cast a chill on regulation. Responding to such concerns, the 2016 draf chapter methodically eliminates this possibility. Te general, freestanding obligation to cooperate in (trade-​relevant) regulation is eliminated. Under Article x.3, regulatory cooperation begins only when “regulatory authorities of both Parties have determined common interest”; and “[co]operation activities towards furthering regulatory compatibility” remain under the control of “the relevant regulatory authorities of both Parties” (Article x.4).27 Cooperation once begun does “not oblige the Parties to achieve any particular regulatory outcome (Article x.1). Te regulators are accountable to political oversight bodies and the public. Progress on regulatory cooperation must be “regularly reviewed at Ministerial level with full participation by the relevant regulatory authorities concerned”; stakeholder involvement—​deemed “critical for the success of regulatory cooperation”—​is to be ensured through dialogue with “interested natural and legal persons, both at the Ministerial and working levels.” (Annex) Recourse to dispute resolution is explicitly excluded from the current draf (x.9). In addition to these specifc procedural assurances, the draf chapter echoes the draf on regulatory coherence in reasserting the regulatory sovereignty of the parties, especially the right of each party to achieve the relevant public policy objectives “at the level of protection it considers appropriate, in accordance with its regulatory framework and principles” (Article x1).

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Ideally, this proposed formalization of the early stages of regulatory cooperation would enhance the accountability of regulatory equivalence were it to be established in a particular domain. Perhaps the regular reviews of the progress of regulatory cooperation, including regulators and ministerial-​level representatives, could be continued and integrated with the reciprocal monitoring established under the regime of regulatory equivalence. In this way, topics such as the risk of workforce displacement and other harms resulting from increased trade, which are likely to be salient at the beginning of eforts to reduce NTMs, can be carried forward and kept on the agenda, in full public view, as the new rules are put into practice. Similarly, deliberate eforts to expand the circle of stakeholders to address public concerns at the early, politically volatile stages of discussion could lead to wider, continuing participation later. But even if developments fall short of the ideal, the combination of explicit democratic control over the formative stages of regulatory cooperation, and the augmented oversight possibilities provided by knowledgeable, partner scrutiny of domestic institutions make regulatory equivalence at least as accountable as familiar, domestic administrative procedures, extending the cooperative reach of sovereignty without undermining the right of national self-​determination. But the possibility of continuing democratic oversight of regulatory cooperation notwithstanding, there will surely be occasions, perhaps many, where potential partners cannot agree on adjustments and prefer instead to keep certain markets closed to (expanded) trade. Under agreements such as the EU’s TTIP draf, they are free to do so. Tese case-​by-​case decisions will naturally provoke domestic confict, to be resolved as democratically as national politics allows; but none of these choices will be so coercively fateful as to compel a trade opening: no country would be forced to endure the pretense of choosing between submission to a trade regime that aims in theory (though not in practice) at more and more uniformity, and independence at the price of exclusion from world markets. Accepting arguendo, these results, consider, by way of conclusion, how the process of norm elaboration discussed here responds to the various claims of the incompatibility of national democracy and the globalization of markets, and suggest that these emergent institutions may constitute a novel and unsuspected mechanism of international cooperation in the absence of a global state or technocratic authority. 8.6  SOVEREIGNTY AND COMPLEX INTERDEPENDENCE: SOME ELEMENTS OF RECONCILIATION Te claim that the democratic determination of public values is limited to the state comes, we saw, in three forms: Rodrik’s globalization trilemma, in which markets can

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be global only if subject to homogenizing technocratic regulation; Nagel’s claim that the obligations of justice are triggered only by democratic sovereignty and thus that international regimes based merely on contract, without implicating the citizens’ will, are normatively barren; and Scharpf ’s claim that the market-​making, negative integration fostered by supranational institutions displaces the market-​correcting, positive integration achieved in the social democratic state. All these views rest on the assumption that only the nation-​state can embody and protect the values of its citizens, so that any international regime that facilitates commerce by subjecting different states to common rules must subvert domestic norms. To show that there is a path around each of these asserted impasses is to provide elements—​for now mostly procedural—​of a conception of sovereignty compatible with the fact of complex, global interdependence. Take frst the trilemma. Tere is no necessary trilemma of globalization when the regulatory complement to markets is built sector by sector, through cooperative determination of regulatory equivalence on the lines described earlier. Under these conditions, there is no distinct global regulator, democratic or not. Regulation emerges from bi-​and multi-​lateral discussion and reciprocal review of goals and procedures among national regulators, each subject to ongoing oversight by political authorities, with the power—​clearly acknowledged in the 2016 EU draf TTIP—​to approve fnal decisions and to reverse them when necessary. Te outcomes of this process will difer from those each party would have arrived at in autarkic isolation because they will refect the facts of economic interdependence, especially diferences in regulatory values and institutional approaches. But unless decisions are truly sovereign only if taken in willful indiference to the circumstances and opinions of the rest of the world, it seems fair to say that cooperative determination of regulatory equivalence within mega-​regional agreements creates starting points for reconciling globalization with the nation-​state and democracy. And since members of the WTO not party to mega-​regional agreements would nonetheless under the organization’s current rules presumptively be accorded the “national treatment” owing to treaty parties, provided they demonstrate the equivalence of their own regulatory regimes, the initial agreements might induce successive waves of (mutual) adjustment, just as the creation of the WTO did in its day.28 Te result, this time around, would in the long term be to create a global regime despite the absence of a truly global founding agreement. In the most favorable case, again presaged by the EU draf TTIP chapter on regulatory cooperation, the extension of equivalence sector by sector and to additional parties would not just conserve the essentials of national democratic accountability amid globalization but would also, by regularizing rigorous reciprocal review and with it the possibility of questioning regulatory means and ends, make oversight more responsive and inclusive. Globalization under these terms might thus enhance national democracy.

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We arrive at a similar conclusion in reexamining the supposed dualism of morally obligating sovereignty and morally neutral contracts between cooperating regulators. Te puzzle is this:  How can it be that the nonbinding agreements described here, subject to continuing political oversight and unilaterally revocable, implicate the will of the sovereign and the citizens in international commitments, without delegating authority to unaccountable bodies? To fnd a solution, it is helpful to return briefy to the role of uncertainty in shaping the circumstances of global exchange. Recall that uncertainty fgured in that discussion both as a cause of the reorganization of production—​from vertically integrated to disintegrated, and from mass to just-​in-​time production—​and as a cause of increasing regulatory emphasis on ex post incident reporting of latent hazards that escaped ex ante review. Uncertainty produces cognate changes in contracting relations between innovative frms. Under relatively stable conditions, contracts between sophisticated parties are exchanges of highly detailed promises (and the penalties, in case of breach). But as the economy becomes more innovative and frms increasingly operate at the edge of established solutions, neither party can say exactly what is feasible. Te nature of collaboration changes from a precise division of labor to a joint exploration of possibilities. In these cases, no particular outcome of the collaboration can be specifed in advance; indeed, at the farthest frontier of practical knowledge, collaboration can end in failure to produce any useful outcome at all. Only if such collaborations produce marketable results do purchase orders (in the case of components entering supply chains) obligate the supplier to produce and the buyer to pay for specifed quantities of the good at a certain date and price. Under these circumstances, the nature of contract itself changes as well. Instead of defning precisely each party’s obligations, the contract establishes broad goals and a regime for evaluating achievement of them:  regular, joint reviews of progress toward interim targets or milestones, as well as procedures for evaluating results and resolving disagreements in interpretation. Te information exchanged under such contracts allows each party to evaluate the capacities and good faith of the other, and in so doing, the prospects of both the particular project and joint eforts generally. As collaboration progresses, each party comes to rely increasingly on the capacities of the other, deterring opportunistic defection even in the absence of an explicit commitment to purchase anything in advance. Put another way, the formal requirements of the contract—​the obligations of regular review and deliberate consideration of the interim results—​create the conditions in which informal norms and self-​interested calculations bind the parties to continue promising collaboration in good faith.29

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Regulatory cooperation of the kind described between the United States and Canada in food safety and between the United States and the EU in civil aviation can be understood as instances of regulator-​to-​regulator contracts of the same novel type. In these cases, the exploration of the possibility of regulatory equivalence entails no obligation to fnd it; and once equivalence has been established, it must be reestablished by periodic review. But this disciplined reciprocal scrutiny leads to protocols for reciprocal review of procedures and—​in the more mature case of civil aviation—​governance institutions whose jurisdiction ranges from local dispute resolution to joint formulation of new rules. Tese protocols and governance institutions give each party warranted confdence in the robustness and adaptability of the other, increasing the breadth and depth of their shared understandings and making it less and less likely that either will exercise the continuing right to unilaterally end cooperation. Long-​term mutual reliance is thus the outcome of continuing mutual review, not of an initial commitment to long-​term collaboration. So far as we can tell, these contracts are subject to at least the same scrutiny as normal administrative rule making; because they are scrutinized—​in progress practice and regularly—​in the mirror of the partner’s ongoing reviews, they are if anything scrutinized more carefully. Te wills of the citizens, or at least those afected by them, are therefore implicated in their content. Because the rules are never fxed and fnal, or delegated for interpretive purposes to an autonomous, international entity, the idea that the institutional origin and form of these agreements deprives their operation of normative efect is even less plausible than it was in Nagel’s original rendition of the claim. And what of the supposed tendency of negative integration to crowd out positive, undoing political limits to markets for the sake of untrammeled commerce? At least in principle, that tension does not exist in the circumstances of global exchange refected in new-​vintage trade proposals among rich countries or between them and middle-​income partners. Te barriers to trade are NTMs. Among rich countries, none has in trade negotiations been willing to abandon its own regulations, adopt the regulations of another, or simply defer to an international standard, for economic gain. Refusing to defer to each other, the rich countries are still less likely to defer to middle-​income economies, where regulatory protections are likely to be spotty at best, and where deregulation would be patently dangerous. Negative integration in the sense of a shif from nationally legitimate norms to norms whose sole justifcation is furthering international commerce is not under discussion. Debate and deliberation are about the mutual adjustment of existing regulations, and agreeing a (sector-​by-​sector) process of continuing revision. Te aim of negotiations is to arrive at forms of—​equivalent—​positive regulation agreeable to all parties; if one regards the proposals of the other as equivalent to deregulation, it is free to reject them.

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Understood as the regulation of trade without a global regulator, as a deliberation-​ inducing contract among nations under uncertainty, and as the mutual adjustment of regulation beyond the dichotomy of positive and negative integration the emergent institutions of regulatory equivalence suggest a practical, if partial, possibility for realizing Kant’s “negative surrogate”—​a portmanteau term today for a Völkerbund or federation of democratic republics, growing incrementally through voluntary association, as a substitute for a global state. Te conventional accounts of the emergence of such a horizontal international order rely on distinct, self-​reinforcing economic and political dynamics. Te defning characteristic of the novel institutions is the entanglement of the two. In one familiar argument for voluntary sovereign federation—​the doux commerce thesis associated with Montesquieu—​trade predominates. It is an emollient of political diferences, perhaps a solvent of politics generally. Commerce all but creates its own international constitution.30 In the other strand of the usual account of federative or horizontal order, politics leads trade by creating an international (but not necessarily global) regulatory armature that encourages the expansion of commerce. Tis idea is prominent in Kant’s idea of a democratic peace: Because republics are accountable to their citizens, who bear the costs of sovereign folly and therefore contain it, they avoid war on each other, but willingly trade goods and (like) ideas.31 Related assumptions underpin Rawls’s conception of a law of peoples as the normative frame of an international society of “decent” societies.32 Variants of the doux commerce and democratic peace ideas can be combined to explain the possibility of complex structures amalgamating elements of a global authority in some domains and federation in others,33 or of forms of political federation that limit state intervention in the economy.34 What is distinctive of international cooperation through the construction of regulatory equivalence is precisely that is does not distinguish economic interests from political commitments in the frst place. Regulatory diferences, themselves fusing the two, provoke reconsideration of existing regulatory norms and practices, and with them the interests and values they refect and imply. In the usual accounts, cooperation supposes broad, shared agreement, as in mutual republican recognition, or a common interest in the benefts of trade. Here, agreement is discovered and interests made mutual through the exploration of diferences at once economic and political. Of course, the “discoveries” of regulatory equivalence are modest indeed compared to the promises of doux commerce, or the democratic peace. Perhaps in time, in the aggregate, they will help reshape and enlarge our sense of democratic participation and transform international cooperation. But, for now, they are all politically subconstitutional, confned to changes in administrative rules and procedures. Te

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economic changes they induce, reinforcing and lending urgency to requirements for self-​monitoring and rapid self-​correction, may likewise have important long-​run, cumulative efects. But they too are now incremental and hard to identify in any case, given the drif of economic development. Yet, to return to our starting point, the timidity of regulatory equivalence, judged as the promise of domestic transformations in step with the creation a new global order, turns bold indeed when judged against the dejection of our day and, especially, warnings of friends against the delusions of self-​determination and accountable cooperation beyond the state. Tere is it seems, against all expectation, a path of small steps forward in the face of the headwinds of history. Where it leads we cannot yet say; but we will soon know more, for we are already on it.

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Notes 1.  Tomas Nagel, “Te Problem of Global Justice,” Philosophy & Public Afairs 33, no. 2 (2005): 113–​47. 2. Joshua Cohen and Charles Sabel, “Extra Rempublicam Nulla Justitia?” Philosophy & Public Afairs 34, no. 2 (2006): 147–​75. Tis essay draws on that one, as well as Bernard M.  Hoekman and Charles Sabel, “Trade Agreements, Regulatory Sovereignty and Democratic Legitimacy” (unpublished manuscript, January 2017); and Gary Herrigel, Peer Hull Kristensen, and Charles Sabel, “Regulation Under Uncertainty: Te Coevolution of Industry and Regulation,” Regulation & Governance 12, no. 3 (2018): (2017): 371–​94. 3.  For a closely related idea, see Fraser’s “all-​subjected” principle, according to which “all those who are subject to a given governance structure have moral standing as subjects of justice in relation to it. On this view, what turns a collection of people into fellow subjects of justice is neither shared citizenship or nationality, nor common possession of abstract personhood, nor the sheer fact of causal interdependence, but rather their joint subjection to a structure of governance that sets the ground rules that govern their interaction. For any such governance structure, the all-​subjected principle matches the scope of moral concern to that of subjection.” Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (New  York:  Columbia University Press, 2009), 64–​65. See also in this connection Kumm’s concept of “justice sensitive externalities” in Mattias Kumm, “Sovereignty and the Right to Be Lef Alone: Subsidiarity, Justice-​Sensitive Externalities and the Proper Domain of the Consent Requirement in International Law,” Law & Contemporary Problems 79 (2016): 239. For a useful typology of positions in the current discussion of these themes, in which the view we advance would be classed as “cosmopolitan pluralism,” see Michael Zürn, “Survey Article: Four Models of a Global Order with Cosmopolitan Intent: An Empirical Assessment,” Journal of Political Philosophy 24, no. 1 (2016): 88–​119. 4. Dani Rodrik, Te Globalization Paradox: Why Global Markets, States, and Democracy Can’t Coexist (Oxford:  Oxford University Press, 2011); Fritz W. Scharpf, “De-​Constitutionalization and Majority Rule: A Democratic Vision for Europe,” No. 16/​14. MPIfG Discussion Paper, 2016. 5. Hoekman and Sabel, “Trade Agreements.”

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6. Rodrik, Globalization Paradox. 7. Scharpf, De-​Constitutionalization and Majority Rule. 8.  “In the presence of backlash against the Uruguay Round result that created the WTO, and more generally the intense contestation of neo-​liberal globalization or “deep integration,” the Appellate Body sought to discern in the corpus of WTO treaties an equilibrium between domestic regulatory autonomy and trade liberalization very much inspired by, or anchored in, the original GATT—​a respect for regulatory diversity and fexibility toward domestic policy interventions that characterized the GATT in the period when it enjoyed the greatest legitimacy or acceptance (postwar embedded liberalism). Robert Howse, “Te World Trade Organization 20 Years On: Global Governance by Judiciary,” European Journal of International Law 27, no. 1 (2016): 9–​77. 9.  Oliver Gerstenberg, Constitutionalizing Social Rights:  Euroconstitutionalism and Its Discontents (Cambridge: Cambridge University Press, 2019). 10. Te following is based on the FDA’s presentation of ICAT; Food and Drug Administration, “Draf:  International Comparability Assessment Tool (ICAT),” International Interagency Coordination, 2010, http://​www.fda.gov/​downloads/​Food/​InternationalInteragencyCoordina tion/​UCM331177.pdf. 11.  Food and Drug Administration, “Report of the Systems Recognition Assessment of Canada,” International Interagency Coordination, 2013, http://​www.fda.gov/​downloads/​Food/​ InternationalInteragencyCoordination/​UCM503960.pdf. 12. EU–​US BASA, “International Agreements Council Decision of 7 March 2011 concerning the conclusion of the Agreement between the United States of America and the European Community on cooperation in the regulation of civil aviation safety,” Ofcial Journal of the European Union, September 11, 2011, http://​eur-​lex.europa.eu/​resource.html?uri=cellar:64d9e1a2-​633c-​4e91-​bbf5-​ 053e5ab1b432.0010.02/​DOC_​1&format=PDF. 13. International Civil Aviation Organization, “Outlook for Air Transport to the Year 2025,” ICAO Circular Cir. 313 AT/​134, September 2007. 14.  Michael Jennison, “Future of Aviation Safety Regulation:  New US-​EU Agreement Harmonizes and Consolidates the Transatlantic Regime, but What Is the Potential for Genuine Regulatory Reform?,” Air & Space Law 38 (2013): 333–​50; Neil Eisner and Richard W. Parker, “Learning from Experience:  Tree Case Studies in International Regulatory Cooperation, A  Report Prepared for the European Commission,” 2016, SSRN Scholarly Paper NO. ID 2780605, http://​papers.ssm.com/​abstract+2780605. 15. Jennison, “Future of Aviation Safety Regulation,” 338–​39. 16. EU–​US BASA, “International Agreements Council Decision,” Annex 1, 3.2.4. 17. EU–​US BASA, “International Agreements Council Decision,” Annex 2X.5. 18. European Aviation Safety Agency and the Federal Aviation Administration, “Agreement/​ Annex 2/​Maintenance,” Te Aviation Safety Agreement Between Te United States and Te European Community, EASA/​FAA Workshops in the U.S.  presentation, September 11, 2011: Slide 23. 19.  European Aviation Safety Agency and the Federal Aviation Administration, “Technical Implementation Procedures for Airworthiness and Environmental Certifcation between the Federal Aviation Administration of the United States of America and the European Aviation

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Safety Agency of the European Union,” Revision 5, September 15, 2015, https://​www.faa.gov/​aircraf/​air_​cert/​international/​bilateral_​agreements/​baa_​basa_​listing/​media/​EUTIP.pdf. 20. Eisner and Parker, “Learning from Experience,” 24. 21. Eisner and Parker, “Learning from Experience.” 22.  Firms that comply with the standard are presumed to have thereby complied with a legal obligation, imposed by the EU, that importers exercise due diligence in determining that timber they market has not been illegally logged. See Christine Overdevest and Jonathan Zeitlin, “Experimentalism in Transnational Forest Governance:  Implementing EU Forest Law Enforcement Governance and Trade (FLEGT) Voluntary Partnership Agreements in Indonesia and Ghana,” Regulation & Governance 12, no. 1 (2017): 64–​87. 23.  Mikolaj Ratajczyk, “Regulatory Framework for a Performance-​Based Approach to Air Safety Management in the European Union,” Air & Space Law 36 (2011): 401; Jennison, “Future of Aviation Safety Regulation,” 349–​50. 24. See generally on EU banking reform: Eilis Ferran, “Financial Supervision,” in Europe and the Governance of Global Finance, ed. Daniel Mügge (Oxford: Oxford University Press, 2014), 16–​34; Jonathan Zeitlin, “EU Experimentalist Governance in Times of Crisis,” West European Politics 39, no. 5 (2016): 1073–​94, esp. 1077–​83. 25. Danièle Nouy, “Presentation of the First ECB Annual Report on Supervisory Activities at the European Parliament’s Economic and Monetary Afairs Committee,” European Central Bank, Brussels, March 31, 2015, https://​www.bankingsupervision.europa.eu/​press/​speeches/​ date/​2015/​html/​se150331.en.html. 26. Ferran, “Financial Supervision.” 27. In its commentary on the current draf chapter, the EU Commission stresses, “Any new regulatory cooperation initiative must be based on the common interest of regulators.” European Commission, (2016): 3; Friedrich Hayek, “Te Economic Conditions of Interstate Federalism,” New Commonwealth Quarterly 5, no. 2 (1939): 131–​49. 28.  Joost Pauwelyn, “Te Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus.” Social Science Research Network, Working Paper (2015): 8; Howse, “World Trade Organization.” 29.  Ronald J. Gilson, Charles F. Sabel, and Robert E. Scott, “Contracting for Innovation: Vertical Disintegration and Interfrm Collaboration,” Columbia Law Review 109, no. 431 (2009): 431–​502. 30. Catherine Larrère, “Montesquieu et le ‘doux commerce’: Un Paradigme du Libéralisme,” Cahiers d’histoire. Revue d’histoire Critique 123 (2014): 21–​38 31.  Georg Cavallar, Kant’s Embedded Cosmopolitanism:  History, Philosophy and Education for World Citizens, vol. 183 (Berlin:  Walter de Gruyter,2015); Pauline Kleingeld, “Kant and Cosmopolitanism:  Te Philosophical Ideal of World Citizenship” (Cambridge:  Cambridge University Press, 2011); Immanuel Kant, Perpetual Peace:  A Philosophical Sketch (Cambridge: Cambridge University Press, 1970). 32. John Rawls, “Te Law of Peoples with ‘Te Idea of Public Reason Revisited’” (Cambridge, MA: Harvard University Press, 2001). 33.  Jürgen Habermas, “Te Divided West, Edited and Translated by C.  Cronin,” Polity 136 (2006): 115–​93.

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34. Hayek anticipates, approvingly, a dynamic in which the desire for peace leads to political federation; federation induces economic integration; and economic integration, because of the diversity of interests it comprehends, checks regulation beyond the minimum needed to order commerce. See Hayek, “Economic Conditions,” 131–​49.

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Bibliography Cavallar, Georg. Kant’s Embedded Cosmopolitanism: History, Philosophy and Education for World Citizens, vol. 183. Berlin: Walter de Gruyter, 2015. Cohen, Joshua, and Charles Sabel. “Extra Rempublicam Nulla Justitia?” Philosophy & Public Afairs 34, no. 2 (2006): 147–​75. Eisner, Neil, and Richard W. Parker. “Learning from Experience:  Tree Case Studies in International Regulatory Cooperation, A  Report Prepared for the European Commission.” SSRN Scholarly Paper No. ID 2780605, 2016. http://​papers.ssrn.com/​abstract=2780605. EU–​US BASA. “International Agreements Council Decision of 7 March 2011 concerning the conclusion of the Agreement between the United States of America and the European Community on cooperation in the regulation of civil aviation safety.” Ofcial Journal of the European Union, September 11, 2011. http://​eur-​lex.europa.eu/​resource.html?uri=cellar:64d9e1a2-​633c-​4e91-​ bbf5-​053e5ab1b432.0010.02/​DOC_​1&format=PDF. European Aviation Safety Agency and the Federal Aviation Administration. “Agreement/​ Annex 2/​Maintenance.” Te Aviation Safety Agreement Between Te United States and Te European Community, EASA/​FAA Workshops in the U.S. presentation, September 11, 2011, Slide 23. European Aviation Safety Agency and the Federal Aviation Administration. “Technical Implementation Procedures for Airworthiness and Environmental Certifcation between the Federal Aviation Administration of the United States of America and the European Aviation Safety Agency of the European Union.” Revision 5, September 15, 2015. https://​www.faa.gov/​ aircraf/​air_​cert/​international/​bilateral_​agreements/​baa_​basa_​listing/​media/​EUTIP.pdf. European Commission. “Regulatory cooperation in TTIP An introduction to the EU's revised proposal.” 21 March, 2016. http://​trade.ec.europa.eu/​doclib/​docs/​2016/​march/​tradoc_​ 154378.pdf. Food and Drug Administration. “Draf: International Comparability Assessment Tool (ICAT).” International Interagency Coordination, 2010. https://​www.fda.gov/​downloads/​Food/​Intern ationalInteragencyCoordination/​UCM331177.pdf. Food and Drug Administration. “Report of the Systems Recognition Assessment of Canada.” International Interagency Coordination, 2013. https://​www.fda.gov/​downloads/​Food/​Intern ationalInteragencyCoordination/​UCM503960.pdf. Ferran, Eilis. “Financial Supervision.” In Europe and the Governance of Global Finance, edited by Daniel Mügge, 16–​34. Oxford: Oxford University Press, 2014. Fraser, Nancy. Scales of Justice:  Reimagining Political Space in a Globalizing World. New  York: Columbia University Press, 2009. Gerstenberg, Oliver. Constitutionalizing Social Rights: Euroconstitutionalism and Its Discontents. Cambridge: Cambridge University Press, 2019.

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Gilson, Ronald J., Charles F. Sabel, and Robert E. Scott. “Contracting for Innovation: Vertical Disintegration and Interfrm Collaboration.” Columbia Law Review 109, no. 3 (2009): 431–​502. Habermas, Jürgen. “Te Divided West, Edited and Translated by C.  Cronin.” Polity 136 (2006): 115–​93. Hayek, Friedrich. “Te Economic Conditions of Interstate Federalism.” New Commonwealth Quarterly 2 (1939):  131–​49. Reprinted in Individualism and Economic Order, by Friedrich Hayek, ch. 12. Chicago: University of Chicago Press, 1948. Herrigel, Gary, Peer Hull Kristensen, and Charles Sabel. “Regulation Under Uncertainty: The Coevolution of Industry and Regulation.” Regulation & Governance 12, no. 3 (2018): 371–​94. Hoekman, Bernard M., and Charles Sabel. “Trade Agreements, Regulatory Sovereignty and Democratic Legitimacy.” Unpublished manuscript, January 2017. Howse, Robert. “Te World Trade Organization 20 Years On: Global Governance by Judiciary.” European Journal of International Law 27, no. 1 (2016): 9–​77. International Civil Aviation Organization. “Outlook for Air Transport to the Year 2025.” ICAO Circular Cir. 313 AT/​134, September 2007. Jennison, Michael. “Te Future of Aviation Safety Regulation:  New US-​ EU Agreement Harmonizes and Consolidates the Transatlantic Regime, but What Is the Potential for Genuine Regulatory Reform.” Air & Space Law 38 (2013): 333–​50. Kant, Immanuel. Perpetual Peace:  A Philosophical Sketch. Cambridge:  Cambridge University Press, 1970. https://​www.mtholyoke.edu/​acad/​intrel/​kant/​kant1.htm. Kleingeld, Pauline. “Kant and Cosmopolitanism: Te Philosophical Ideal of World Citizenship.” Cambridge: Cambridge University Press, 2011. Kumm, Mattias. “Sovereignty and the Right to Be Lef Alone:  Subsidiarity, Justice-​Sensitive Externali and the Proper Domain of the Consent Requirement in International Law.” Law & Contemporary Problems 79 (2016): 239. Larrère, Catherine. “Montesquieu et le ‘doux commerce’: Un Paradigme du Libéralisme.” Cahiers d’histoire. Revue d’histoire Critique 123 (2014): 21–​38. Nagel, Tomas. “Te Problem of Global Justice.” Philosophy & Public Afairs 33, no. 2 (2005): 113–​47. Nouy, Danièle. “Presentation of the First ECB Annual Report on Supervisory Activities at the European Parliament’s Economic and Monetary Afairs Committee.” European Central Bank, Brussels, March 31, 2015. https://​www.bankingsupervision.europa.eu/​press/​speeches/​ date/​ 2015/​html/​se150331.en.html. Overdevest, Christine, and Jonathan Zeitlin. “Experimentalism in Transnational Forest Governance:  Implementing EU Forest Law Enforcement Governance and Trade (FLEGT) Voluntary Partnership Agreements in Indonesia and Ghana.” Regulation & Governance 12, no. 1 (2017): 64–​87. Pauwelyn, Joost. “Te Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus.” Social Science Research Network, Working Paper (2015). https://​ssrn.com/​abstract=2549050. Ratajczyk, Mikolaj. “Regulatory Framework for a Performance-​Based Approach to Air Safety Management in the European Union.” Air & Space Law 36 (2011): 401.

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Rawls, John. Te Law of Peoples with ‘Te Idea of Public Reason Revisited. Cambridge, MA: Harvard University Press, 2001. Rodrik, Dani. Te Globalization Paradox:  Why Global Markets, States, and Democracy Can’t Coexist. Oxford: Oxford University Press, 2011. Scharpf, Fritz W. “De-​Constitutionalization and Majority Rule:  A Democratic Vision for Europe.” No. 16/​14. MPIfG Discussion Paper, 2016. Zeitlin, Jonathan. “EU Experimentalist Governance in Times of Crisis.” West European Politics 39, no. 5 (2016): 1073–​94. Zürn, Michael. “Survey Article: Four Models of a Global Order with Cosmopolitan Intent: An Empirical Assessment.” Journal of Political Philosophy 24, no. 1 (2016): 88–​119.

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9.1  INTRODUCTION Is there a human right to be governed democratically?* And what are the considerations that might ground such a right? Tese are the questions raised in Joshua Cohen’s 2006 work, “Is Tere a Human Right to Democracy?”—​a paper over which I have agonized since I saw it in draf form, many years ago. I am still uncomfortable with its central claim, that while justice demands democratic government, the proper standard for human rights demands something less. But, as I hope to show, the reasons for that discomfort are occasioned less by the thought that democracy may not be a human right than by the very signifcant gaps in our understanding of rights that debates about the human rights status of democracy exemplify. I therefore start by situating Cohen’s paper within philosophical debates about the structure and justifcation of human rights. I then look at the debate about democracy and human rights that it has occasioned, and I explain why this debate is not easy to resolve. Finally, I point to difcult issues that arise for a philosophy of human rights if one accepts, as we probably should, that democratic government is not best thought of as a human right, at present. My hope is thereby to contribute to the political philosophy of human rights that, I assume, a commitment to democratic government requires, whether or not democracy is itself an object of human rights. 231

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Nothing in the arguments about human rights I examine presuppose an interest-​ based, as opposed to a choice-​based theory of rights (Wenar 2008). However, for the sake of simplicity, I will assume that talk of “a right” presupposes the idea of a human interest of sufcient moral importance to generate duties that limit what other people may morally do. Moreover, I take no stand on how human rights should be enforced, or the degree to which they should be treated as legal rights, with legal penalties attached for their violation. Instead, in this chapter, I examine the content and justifcation of human rights, understood as a species of moral right, specifying what people are entitled to be, to do and to have.

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9.2  RAZ AND THE PROBLEM OF UNDERSTANDING HUMAN RIGHTS Tere is an intuitive, plausible, and infuential picture of human rights—​a picture of human rights which many of us grew up with and afrm—​on which human rights are a subset of moral rights characterized by their special urgency, their universality, and the fact that they apply to individuals qua individual, regardless of any other characteristics an individual might have (Tasioulas 2012, 1–​30). Tey apply to humans, in other words, because they are human, and they apply to all members of the human species at all times, simply in virtue of the fact that they are human. Teir special stringency comes from the fact that violations of these rights throw people’s humanity into question—​the humanity of the violator, as well as the humanity of the violated. And so, whatever other moral or legal rights people might have, they will have this set of moral entitlements—​human rights—​whose protection is urgent and incumbent on all other humans. Tis appealing and intuitive picture of human rights appears to suggest that the basis or grounds for attributing human rights to people is our shared nature as humans. However, such a move has, notoriously, led to a bit of a dead-​end. It is difcult to see what in our nature justifes ascribing to people a distinctive set of universal and unchanging rights—​a problem made all the more difcult once one allows that people’s nature and capacities are fundamentally shaped by their environment. Moreover, as Joseph Raz has argued, even if we had a theory of human nature suitable to an account of human rights, we would still face the problem that human rights, so described, are hard to distinguish from other moral rights (Raz 2010, 321–​ 38). All moral rights, afer all, appear to have some grounding in our nature, and the way in which valuable human capacities can be realized, expressed, or thwarted by other people’s behavior. Hence, Raz argued, we should stop trying to locate the content and justifcation of human rights in a theory of human nature and, instead, look to their function as a way of distinguishing them from other moral rights.

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Human rights, Raz argued, have the distinctive function of specifying the necessary, if not sufcient, conditions for one state to be morally justifed in interfering in the afairs of another: “Following Rawls, I will take human rights to be rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a (defeasible) reason for taking action against the violator in the international arena” (Raz 2010, 328). Examples of such international action, Raz explained, can include making conformity to rights a condition of aid, calling on states to report their conduct regarding protection of human rights, condemning violations, refusing to provide landing or overfight rights, trade boycotts and, of course, military intervention. While Rawls defned human rights narrowly, such that their violation might justify armed intervention specifcally, the conception of human rights suggested by Raz is broader and likely to be more closely in line with actual political and legal practice (Raz 2010, n21). However, while Raz’s focus on the function of human rights is helpful, it appears to sufer from at least three difculties. Te frst, and most obvious, is the implausible and unattractive implication that criticism of another state requires us to identify some violation of human rights as the source of our complaint (Miller 2015b, 234). While we’d obviously want to complain about violations of human rights—​ given that they are meant to be especially urgent moral entitlements—​the idea that you have to fnd such violations in order publicly to complain about another state’s policy seems to take the bounds of state sovereignty too far. Second, what the lower limits of “intervention” are matters to the plausibility of Raz’s theory, and its ability to meet Raz’s sensible concern that philosophical theories of human rights should have some bearing on what people engaged in the practice of human rights actually do and demand (Waldron 2013, 16). But there seems no philosophically satisfactory way of specifying what that lower limit should be: indeed, as David Miller has argued, there is something counterintuitive in thinking that we need a theory of sovereignty and its limits in order to decide what is or isn’t a violation of human rights (Miller 2015b, 235). Raz’s conception of human rights makes human rights “the conclusion of the argument [about legitimate state intervention], not the premise,” whereas “speaking for myself (and I  suspect for many others), I fnd that when I think about intervention, I begin by considering the harms that it is mean to prevent. Tat is, I begin by looking at what I would regard as serious violations of human rights—​people being driven from their homes, people being deprived of their means of subsistence, people being severely “punished” on account of their ethnic or religious identities, etc.” (Miller 2015b, 235). Finally, and relatedly, Raz’s approach to human rights seemed too thin to capture common intuitions about the special badness of violating human rights, compared to the other bad things we might do to each other—​whether they involve rights violations or not.

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Te appropriateness of an international response seems, in principle, a poor test of the gravity of an action: morally trivial violations of international trading regimes may require international responses, whereas there are many horrible things which we might do to each other for which international interventions seem too clumsy and indirect a remedy. Hence, even those who sympathized with Raz’s impatience with traditional approaches to human rights believe that his own approach is not obviously better. Keeping the attractions and difculties of Raz’s paper in mind helps us to see the signifcance of Cohen’s paper.1 While Cohen agrees with Raz that the function of human rights is to explain the limits within which one state can intervene in the afairs of another, he insists that this is only because human rights violations undermine people’s duties to obey their government—​that is, such rights describe the minimal set of duties that governments owe to those they govern. “Human rights are not rights that people are endowed with independent of the conditions of social and political life, but rights that are owed by all political societies in light of basic human interests and the characteristic threats and opportunities that political societies present for those interests” (Cohen 2006, 232). Specifying the minimum requirements of political obligation, the protection of human rights therefore marks the point at which states can rightfully insist on the political obligation of their members, and on the legitimacy of their rule in their dealings with other states. As Cohen puts it, if human rights mark the point at which individuals have a duty to obey, we can see why it would be morally unacceptable for outsiders to intervene militarily in their afairs if such rights are upheld (Cohen 2006, 234). And if human rights are sufciently urgent moral demands such that their violation justifes intervention by other states, we have a way of thinking about their importance that includes, but is not reducible to, their political function (Cohen 2006, 234). Te content of a theory of human rights, according to Cohen, can be explained in terms of two diferent groups of moral entitlements that all individuals have—​ namely a set of basic rights which refect “the demands of basic humanity”2 whether or not we are members of a particular society (Cohen 2006, 238); and a broader set of rights which can be thought of as rights that refect a normatively appealing and suitably global conception of social inclusion or membership. Te frst set includes traditional human rights to life, bodily integrity, personal security, and the like; the second set refects the broader set of human rights recognized by the Covenant and its successors, such as rights to education, work, cultural inclusion, assembly, expression, and participation (Cohen 2006, 238). Whereas the frst set of rights are the sin qua non of human rights protection, so paradigmatic of human rights that they must be given a central place in any theory of human rights, the content and justifcation of the latter is more controversial. Cohen’s idea is that if we think

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of this broader list as a specifcation of what it takes to see someone as a member of society—​rather than an outsider, whose well-​being is of no special concern to members or to their government (Cohen 2006, 239)—​we can formulate an account of human rights that is philosophically compelling and capable of illuminating and guiding human rights practice. Specifcally, Cohen suggests, understanding the point of human rights as the specifcation of internationally compelling moral norms of membership enables us to acknowledge that human rights are merely a part of any account of justice, albeit an important part. He thereby hopes to avoid both overexpansive conceptions of human rights, which lose sight of their politically important function, and a too minimal list of human rights focused on the right of bodily integrity. Te point of human rights, as Cohen sees it, is to mark globally relevant claims of political obligation, such that any reasonable person will, on refection, be able to agree that states which protect these two sets of human rights are “decent,” albeit unjust in various ways. Terefore, Cohen argues, we should think of human rights as those rights that are necessary for us to see a society as ours, as demonstrably refecting our well-​being and, therefore, entitled to our obedience.3 Te importance and challenge of Cohen’s argument, I hope, are reasonably plain. For example, if we take the critique by Tasioulas of all “political” theories of human rights, on the grounds that these seem to apply only to an international system of states (Tasioulas 2012, 26–​27), we can note that whatever may be the case for Raz, Cohen has a natural and persuasive response. Cohen’s theory of human rights is a theory of the necessary moral conditions of political obligation, and not a theory that assumes modern states are—​or ought to be—​the sole bearers of political obligation.4 Any body—​whether a family, tribe, a premodern state or a postmodern state—​that claims our obedience, and a right to rule over us, is to that extent the object of human rights evaluation. Cohen’s paper provides a political approach to human rights—​an approach based on their political function—​which is consistent with the universality of human rights. As Catherine MacKinnon has argued, drawing inspiration from Eleanor Roosevelt, judgments of human rights should be as much at home in domestic politics as in international relations (MacKinnon 1993, 83–​110.) For example, rape is a violation of human rights whether or not it occurs in a war zone or in a shopping center, and states have duties to prevent its occurrence, adequately to identify and punish its perpetrators, and to support and aid its victims, as part of their ordinary domestic politics, as well as their relations with other states. Likewise, Cohen’s conception of human rights appears helpfully to combine “political” and more “traditional” approaches. For example, it gets the direction of argument right, in the sense that it is the importance of the interests which human rights articulate and protect that explains the ability of human rights to function as

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markers of the limits of sovereignty, rather than the other way around, as with Raz. And, the idea of human rights as membership rights provides a natural interpretation of their moral importance, independent of their political function, and provides a regulative ideal with which to evaluate competing claims about what should count as a human right. Still, it should be noted that on Cohen’s theory, it is possible that we do not have a human right to be a member of a political society. How troubling that is—​if it’s true—​depends on what we would lose (conceptually, morally, or politically) by insisting on a right to be a member of some society, as opposed to a right against wrongful deprivation of membership from a particular society. However, while we may want to return to the question of whether there is a human right to be a member of society—​that most Arendtian of rights—​I will turn to the other challenges that come with Cohen’s picture of human rights, and the controversies about democracy and equality which they have occasioned. According to Cohen, there is no human right to be governed democratically, although, as Rawls argued, we have human rights to be consulted by our government, (at least in some form) and to criticize it.5

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9.3  NO HUMAN RIGHT TO DEMOCRACY? According to Cohen, democracy is a demand of justice, but it is not therefore required by a theory of human rights (Cohen 2006, 233f ). Not everything that justice requires is a human right and the bounds between the two are set, on Cohen’s view, by the best interpretation of what it is to be a member of a society, according to a global conception of public reason. We are concerned with a global, rather than a domestic, conception of public reason, according to Cohen, because the point of human rights is global and not purely domestic—​namely to determine the moral requirements that states must meet to be able justifably to demand the obedience of their members, and the recognition/​acceptance of their legitimacy internationally. What is at issue are internationally binding norms of (political) morality (Cohen 2006, 243). In short, global public reason, according to Cohen, will not always treat democratic government as a norm of justice—​although one day, perhaps, this will turn out to be the case. Global public reason, for Cohen, refers to the terms of argument and justifcation used in discussing the conduct of diferent political societies, and is therefore meant to function as a common moral and political resource with which peoples “in a deeply pluralistic world,” can determine their collective life and rules of conduct (Cohen 2006, 236). At least at present, Cohen thinks, people who are reasonable and willing to live in peace with others may simply not hold the full

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set of moral and political views that are necessary to see democratic government as a requirement of justice. While able to recognize and afrm rights freely to worship, to form consensual family arrangements, to give one’s input into the way that one is governed, and to criticize governments that ignore that input, people may nonetheless reasonably deny that being a full member of society requires something more (Cohen 2006, 244). Indeed, they may insist that they feel themselves to be full members of their society even though they are governed by a hereditary monarch; sufer from some disabilities because of their sex, race, ethnicity and/​or religion; and even if they accept that such disabilities would be threats to their sense of belonging, or of membership, if they lived in some other type of society.6 Moreover, Cohen argues, it is a mistake to suppose that democratic political institutions can be sharply distinguished from democratic social ones—​from forms of sociability, ways of organizing work, family life, and leisure, for example, which depend on distinctive views about the moral freedom and equality of human beings (Cohen 2006, 240–​42). To suppose that democracy is a human right means that people have an especially urgent duty to organize their basic institutions, not just their narrowly political ones, along the lines implied by a democratic view of personal and collective choice; and that we owe particularly urgent duties of aid to all those who are not yet members of such a society, regardless of their situation. But do we have such duties? As David Miller has argued, it’s not clear how morally urgent it is to make the transition from being a decent but undemocratic society—​ along the lines, perhaps, of England before the First World War—​to being both decent and democratic (Miller 2015a, 179–​80, 188–​89).7 Indeed, Cohen worries that the only way to make a human right to democracy anything other than a sectarian and intolerant vision of global justice, and to motivate its urgency, is to use so thin a conception of “democracy” that we lose much of its moral and political appeal.8 9.4  THE IMPORTANCE OF DEMOCRACY? Two main arguments have been raised against Cohen’s claim that democracy isn’t a human right. Te frst is that even if democracy is not justifed directly by a political conception of human rights, we should consider it to be justifed indirectly or instrumentally, on the grounds that democratic government is necessary to the secure enjoyment of one’s human rights or, at least, probably the best way to secure them (Christiano 2015, 2011; Gilabert 2012). Te second argument is that given the noninstrumental value of democracy, we have reasons to suppose that it should fgure on the list of human rights directly—​although Tom Christiano suggests that respect for self-​government means that people’s may, with universal consent, decide

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in favor of something less than democratic governance as an exercise of their human rights, rather than as a derogation from them (Christiano 2015, 468–​79; Christiano 2013, 318–​20). I’m sympathetic to both these arguments. However, they share a difculty (which Cohen noted in his original paper): that for these arguments to work, we must be able to distinguish the value of democracy (instrumentally and noninstrumentally) from the value of constitutional government, rule of law, and some nondemocratic forms of collective decision-​making (see also Peter 2015, 485–​87). Many of the alleged reasons to instrumentally value democratic government are reasons to want our governments to be constitutional and to protect freedom of movement, association, and expression. Tey do not seem to point to any special virtue of democratic government, over and above these features. For example, Amartya Sen is famous for noting that democracies do not have famines (Sen 1999, ch. 7), and he notes the dreadful famine that took place under Mao, afer the Great Leap Forward. However, “in the period afer the Great Leap Forward, China also lacked collective self-​determination, the rule of law, and (as Sen emphasizes) protections of speech, press and assembly. It is hard to know whether to lay the responsibility [for avoiding famine] specifcally on the doorstep of democracy” (Cohen 2006, 245; see also Miller 2015a, 181).9 Te question of how to distinguish democratic from undemocratic, but constitutional, government is a matter that has received relatively little philosophical refection and, such attention as it has received, has refected questionable assumptions about the liberal character of constitutional government, and its status as legal rather than a political arrangement.10 Yet, resolving disagreement on the human rights status of democracy depends on developing a philosophically satisfactory conception of constitutional government—​one that enables us to distinguish the rights, duties, and status protected by constitutional, as opposed to democratic, government on a variety of plausible conceptions of constitutional government and democracy. But progress on this philosophical debate, I believe, also depends on what we can learn from empirical cases that mark the theoretical diferences between decent but hierarchical societies, as Cohen understands them, and their democratic equivalents. We may therefore learn something from cases such as Britain before 1918, and the extension of votes to all men over the age of 21 and to women over the age of 30, and on equal terms in 1928; or Switzerland before and afer universal sufrage in 1971, (although some cantons had already granted women the vote, and Appenzell only did so in 1991). We might also consider the Nordic countries and Liechtenstein, which fnally granted women the vote in 1984. Careful study of these cases might help to clarify how far—​or in what circumstances—​democratic rights are necessary to combat abuses of human rights that are not adequately prevented by constitutional

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means alone; and might also help to clarify conceptual, as well as normative and social-​theoretic, questions about the diferences between constitutional government as a democratic and as an undemocratic ideal.11 Sadly, it is too late to be able to ask the men and women who lived through the transition to universal sufrage in Britain to refect on the instrumental and noninstrumental value of the vote—​though doing so would provide helpful insight into the way that class, ethnicity, and national identity afected one’s experience of both constitutional and democratic government. However, it is not too late to use survey research, as well as other means, to investigate the Swiss case. Granted, that the Swiss case is rather special, given that by the 1970s Switzerland was a fairly egalitarian and consensual society (certainly as compared to nineteenth-​century Britain, let alone the Empire), and its justifcation of “hierarchy” was, to that extent, rather limited. However, it is one of the few examples we have of a “decent but hierarchical” society in which there was subsequently a peaceful transition to democratic government. It therefore merits attention by philosophers, as well as more empirical social scientists, for the light it sheds on the diferences between democratic and undemocratic constitutionalism, and the signifcance of those diferences for the protection of human rights. Tat is not to say that “decent but hierarchical” societies must be constitutional governments in the ways typical of European countries, with a formal separation of law and politics, and a specialized legal apparatus employing people with specialized legal knowledge, training, and careers. Even if one believes that human rights include a right to be governed democratically, it is unclear how far “the separation of powers” and the development of specialized legal institutions are required for a society to be human rights–​protecting. However, because the relative causal importance of constitutional government and democratic government are at issue in instrumental and noninstrumental claims about the human rights status of democracy, it can be helpful to use actual cases to test and refne our conceptual, normative and factual assumptions.

9.5  DEMOCRACY OF WHAT? In addition to the difculty of distinguishing democratic from constitutional government, there is a second difculty with the current debate on democracy and human rights—​a difculty to which Cohen’s reference to a “democratic society” points, but does not resolve (Cohen 2006, 240–​41). Te working assumption of the current debate—​though largely implicit—​has been that democracy is identifed with the right to vote and, to a lesser extent, the right to stand as an elected representative.12

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But there appear to be many diferent ways in which our relations with one another might be conducted democratically, and it is uncertain that voting for political representatives to a national legislature every few years is the most important form of democracy, if we care about human rights. “Workplace democracy,” “village democracy,” or the chance to participate in the determination of water and land rights in one’s region, or in the policing of one’s locality, may be much more important to how one’s life goes, to one’s bodily integrity, and to one’s sense of being a full member of society than the right to elect a representative to a legislative body that may be as psychologically remote as it is geographically distant. Beyond this, there are many important social positions that infuence one’s human rights, including serving on the police force and teaching. Perhaps, then, access to key jobs is, in some circumstances, more important than a right to vote on instrumental grounds? Or, perhaps the form of democracy that best makes sense within a theory of human rights is some form of local, regional, even pan-​national democracy, rather than democracy at the level of national government? Put simply, then, further progress in this debate clearly depends on the ability to determine what a human right to democracy is a right to do or decide, given that there seem to be many forms of democratic organization and decision-​ making, of which representative democracy as currently conceived is only one. In short, whether or not we agree with Cohen, his conclusions remind us how little we know about the relationship between constitutionalism and democracy, on the one hand, and the varieties of democratic government, on the other. 9.6  SOME FINAL POINTS ABOUT THE IMPORTANCE AND CHALLENGES OF COHEN’S PAPER It is an unfortunate feature of the interest about human rights and democracy, which Cohen’s paper has caused, that other aspects of his theory of human rights have been neglected. I close this chapter by pointing to some of these issues and their signifcance for an account of human rights that takes seriously the ubiquity, complexity, and moral signifcance of our capacities for collective association and of coercion. 9.6.1  Te Relationship Among the Claims of Humanity and Membership Recall that on Cohen’s theory, global public reason determines what claims to membership make up a conception of human rights. As he sees it, it would be sectarian and, possibly, authoritarian and paternalistic, to insist on the correctness of incorporating “our” core convictions about justice into an account of human rights

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that is meant to bind everyone. However, it is unclear that we can sharply distinguish between those “basic” human rights, which Cohen takes to be uncontroversial elements of global public reason, and “democratic government,” with its attendant and controversial forms of social equality. All societies, as Stuart Hampshire has claimed, condemn murder, rape, and thef (Hampshire 1991). However, their reasons for doing so are ofen fundamentally at odds with basic ideas of human rights. (Hampshire 1991, 142–​46, 187; Hampshire 1993). Unfortunately, many people, and many societies, condemn rape, murder, and thef because of the harms they do to people other than the victims. Tey may see murder as a form of thef of the property of a king or a lord; or condemn rape because it disgraces husbands, fathers, and brothers. Tey may deny that forced unremunerated labor (corvée) is a form of thef, and see wives as the property of their husbands. So, the idea that harms caused to the victim are a sufcient reason to condemn murder, rape, and thef may be quite alien even in societies that actively condemn these activities and punish them (when recognized) very severely. Such societies will actively deny that governments have a duty to consider the well-​being of all the individuals on their territory or to take their good into account. Tose who deny that everyone’s life has noninstrumental value will not count as reasonable, on Cohen’s view of global public reason. But many of the people who fnd democratic social and political equality morally unacceptable, despite apparently condemning murder, rape, and thef, may hold unreasonable views of this kind. Tat is, they believe that the lives and bodily integrity of people who are of the “wrong” sort do not generate the sort of moral claims of those who are of the “right” kind. Moreover, even if they agree that the well-​being of all human beings counts morally, they may deny that they should do so equally, even in the case of basic rights of bodily integrity and security. So, it is necessary to understand how the rights demanded by “humanity,” on Cohen’s account of human rights, are to be described and justifed consistent with global public reason; and how these are to be justifed and maintained in societies that accept and even require departures from equality on paternalistic grounds, or based on claims of tradition, harmony, community, faith, and/​or reason. Unfortunately, Cohen’s paper is unhelpful here because, in it, he never states explicitly that decent hierarchical societies must accord women’s lives and bodily integrity the same importance as those of men. Cohen appears to believe that equal rights to bodily integrity are a necessary part of a theory of human rights, although equal political rights are not—​that the former are necessary for us to suppose that our personal good does fgure in some reasonable, but hierarchical, conception of a common good. However, Cohen says nothing explicitly on the subject, nor is it clear what personal or civil inequalities he would consider to be unjust but consistent

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with seeing oneself as a full member of one’s society. It seems fair to suppose that the sorts of decent but hierarchical relations he has in mind are ones in which marriages may be arranged by parents, but with children’s good in mind and subject to their agreement; in which women’s claims to bodily integrity are recognized by courts and their testimony against men is taken seriously, although women are assumed to have distinctive rights and duties as compared to men. But as these examples reveal, we cannot sharply distinguish people’s claims to bodily integrity from their claims to a say in parental and marital relationships, or their ability successfully to defend their interests in a court—​or its equivalent. It is therefore hard to diferentiate what forms of inequality are violations of human rights from those which—​however unjust—​do not threaten either our humanity or a globally satisfactory ideal of social membership. Tere may be relatively few ways to justify political inequality, consistent with global public reason, once one accepts universal (and, especially, equal) rights of bodily integrity, and their implications for fair trials, freedom from torture, wrongful imprisonment, and the like. If so, human rights–​protecting societies will protect substantively more or less the same set of rights, regardless of a person’s sex, gender, religion, or ethnicity, even if the form those rights take, and the way that they are justifed, is communal or communitarian, rather than general or universalistic. On the other hand—​and more troublingly—​perhaps it is reasonable to see a society as “ours” even if our well-​being counts less (while still counting) than that of other members of our society? If so, “decent but hierarchical” societies could be caste societies that, while insisting that governments owe duties of care and consultation to all members, deny that people’s bodily integrity, dignity, and well-​being are of equal importance.13 It might seem that we can avoid these difculties by abandoning the idea of a political approach to human rights—​one which tries to read important elements of their content and justifcation of their function, rather than of alleged claims about human nature. Instead, we may want to insist that these problems in determining the content and justifcation of human rights, and the extent to which they require personal, civil, and political equality, are simply artifacts of a mistaken way of thinking about them (Tasioulas 2012). Basing human rights on nature rather than politics, on this view, inevitably precludes questions about the relative strength of people’s claims to bodily integrity; the implications for civil and political equality of their right to practice a religion; or the relationship between people’s instrumental and noninstrumental interests in basic rights. While natural, such a position is mistaken. Te problem of determining which injustices are violations of human rights and which are not is not an artifact of the political conception of human rights but, rather, of the discourse of human rights

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itself. Assuming that we are equally human, and therefore equally deserving of human rights, leaves open the question of what protections for our bodily integrity, freedom, and dignity we are entitled to, and how these are to be distinguished from those forms of equal protection which justice requires morally and politically. For example, what rights against discrimination in job opportunities, promotion, and pay are required by human rights? As Miller notes (2015a, 186), laws that prevent discrimination at work and in education plausibly have a protective function—​making it more difcult to deprive minorities of the ability to meet their basic needs and to participate in the social, cultural, and political life of their society. However, it is unclear what forms of equality would be justifed by commitment to human rights—​what forms of equal access to education and jobs, for example; what forms of equal pay and promotion? As Miller also notes, a purely protective case for antidiscrimination laws is unlikely to condemn those forms of discrimination that afect the relatively wealthy, well educated, and well connected; on the other hand, it is unclear whether there is a convincing noninstrumental case for insisting on formal equality in all cases, let alone something more substantive (Miller 2015a, 186–​87). Tus, whatever perspective on the philosophy of human rights one adopts, philosophical progress now requires the careful presentation and comparison of those injustices that do and those that do not violate human rights on competing conceptions of their content and justifcation.

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9.6.2  Te Problem of Suboptimal Equilibria, Dynamics, and Undemocratic Governments Cohen’s theory of human rights, of course, is consistent with democratic government as an element of human rights, depending on how global public reason evolves. But as it is, as it has been, and perhaps as it is likely to be in future, it looks as though global public reason precludes a human right to democracy. If we see democracy as necessary for justice, however—​and as an important and not a trivial element of a theory of justice—​it would be odd to conclude that a commitment to human rights should leave us indiferent between democratic and undemocratic government. If that’s so, then the diferences among human rights–​respecting governments merits further attention in a political approach to human rights. In particular, there are two reasons. First, if justice requires democracy, we cannot be indiferent to the diferences between democratic and undemocratic government, even if both are consistent with human rights. Within “our” conception of human rights, therefore, there should be room for a story about the instrumental and noninstrumental value of democracy as, in some way, a more perfect expression of the moral and political commitments that underpin human rights (even if they exclude a right to democracy).

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Rawls (1999, 70, 84) persuasively argues that all human rights–​protecting regimes must be treated as equally satisfactory for many practical purposes, and as having each cleared a morally signifcant hurdle. Hence, as he says, it would be wrong for democratic, but human rights–​protecting, states to gang up on those which are human rights–​protecting but undemocratic, or to ofer the latter a lesser voice in collectively binding deliberations, or less consideration for their interests. Yet, on the other hand, Rawls clearly assumes that democracies might help human rights–​ protecting but undemocratic societies to become democratic (1999, 84–​85), though he emphasizes that while private groups may ofer subsidies and incentives, democratic states themselves may not), thereby begging the question of what undemocratic societies might do consistent with the law of peoples to promote transitions from democracy toward their favored form of government. In short, how we should think about the moral and political diferences among human rights–​protecting regimes bears careful consideration, whatever one’s view on the human rights status of democracy, given the diferences between the demands of human rights and other essential requirements of justice. Te issue is likely to have real practical importance, once one considers the familiar problem of “suboptimal equilibria” or the reasons why human rights–​protecting governments may be unable peacefully to “transition” to democracy, or to other criteria we hold to be fundamental for social justice. Just because diferent countries are equally good at protecting human rights, it does not follow that they are equally good from the perspective of “justice” more generally. In particular, it surely should matter to us, if we believe democracy necessary for justice, that some countries that protect human rights may have a more difcult time peacefully transitioning to democratic government than others—​because of the incentives on which they depend, for example, or the implicit and explicit rewards and penalties with which they operate.14 As democrats, we might want to be able to argue in favor of the latter type of regime, as compared to the former, even though they are both human rights–​protecting—​and to do so not merely in philosophical discussions with the like-​minded but also as parts of ordinary politics. In short, as democrats, we may want our philosophy of human rights to mark the morally and politically signifcant diferences between democratic and undemocratic governments, even if democracy is not required for human rights; and we may want to mark the diferences among types of undemocratic government that are human rights–​protecting depending on whether or not they are likely to trap people in what we can only regard as a suboptimal equilibrium. (Rawls tends to overlook this possibility, as he seems to suppose that decent societies will have a fairly smooth path to democracy, even if they may want to ask already democratic societies for help and advice. Te possibility that a decent society might create desires, expectations, and disabilities that block peaceful transitions to democracy is not seriously

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considered.) A  more explicit commitment to democratic government, therefore, may need to be part of our philosophy of human rights—​even if it cannot be part of the philosophical justifcation of human rights to every human rights–​respecting country—​and the same may perhaps be true for some socioeconomic rights that are not plausibly thought of as human rights, such as the Diference Principle or Fair Equality of Opportunity, and their equivalents.

9.7 CONCLUDING QUESTIONS

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I close with three questions raised by Cohen’s account of human rights: 1. Is democracy merely an “optional extra” or a matter of indiference, from the perspective of human rights and, if not, how do those of us who think about democracy as a requirement of justice incorporate our sense of its importance into our accounts of human rights? 2. How should we incorporate the dynamic, as opposed to static, elements of a theory of human rights, such that it is possible to capture, from with a theory of human rights, the concerns for justice that motivate a concern for human rights, even if human rights are only one element (albeit important) of a theory of justice? 3. How are we to make sense of the special urgency of human rights, relative to other moral concerns, whether rights-​based or not? In particular, how are we to do so while acknowledging that people may reasonably disagree about the relative importance and justifcation of diferent human rights, even when they agree upon the content of the (provisional) set of human rights? It is ofen unclear what “urgency” means in the case of other moral rights, given their heterogeneous character, internal complexity and so forth. (Waldron 1993, chs. 1 and 2, in particular). We therefore lack a clear sense of the “urgency” of rights in general that we can adapt to the case of human rights in particular.15 Te importance of gaining greater clarity on the urgency of human rights, however, is philosophical as well as practical. Te Rawls/​Razian challenge to the traditional view of human rights made clear that the political function of human rights in international relations can illuminate their distinctive content and justifcation. But it also exposes how uncertain philosophers are about what counts as “normal” practice and, more troublingly, what should count as an appropriate response to violations of human rights. Without greater clarity on the special urgency of human

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rights, relative to other rights and relative to non–​rights-​based reasons for action, it will be hard to make much progress on these matters. Critics of the “political turn” in human rights theory, such as John Tasioulas, complain that these theories fail adequately to refect human rights practice, and that they challenge accepted and intuitively appealing ideas of human rights. Tese critics, however, appear to identify human rights practice in an unduly optimistic way—​ignoring widespread failures to protect human rights and the recognized doubts and quandaries which a commitment to human rights poses for human rights practitioners, as for politicians and citizens. Perhaps philosophy cannot help much with the former and, as Rawls argued, philosophy is no substitute for political courage, knowledge, and luck (Rawls 1999, 93, 97). Nonetheless, I suspect, that it is only by integrating our theories of human rights into political philosophy and, specifcally, into democratic political philosophy, that we will be able to make progress in answering the difcult questions about human rights to which Cohen’s important, and provocative, paper points.

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Notes * Tis article was originally written for a conference in honor of Joshua Cohen, held at the Stanford University, January 20–​22, 2017. I am very grateful to Debra Satz for organizing this conference, for her help in arranging the publication and editing of this book, and for her excellent editorial advice on my chapter. Josh was my teacher and doctoral supervisor at MIT. His research and teaching are a huge infuence on my own, and I am profoundly grateful for his support and encouragement through bad times, as well as good. John Tasioulas kindly sent me copies of his articles when I needed them, as did David Miller, who also read an earlier version of this chapter. As I was preparing a revised version for publication, I was able to present it to the “Workshop on Rights,” Department of Philosophy, University of Berne, September 29–​30, 2017. I am particularly grateful to Rowan Cruf, Pablo Gilabert, Anna Goppel, David Lyons, Peter Schaber, and Markus Stepanians for their encouragement and critical comments. I would also like to thank Simon Wigley for an email discussion of the conceptual and empirical issues raised in this article, and for sending me his paper on democracy and child mortality, although I was unable fully to take them into account in this chapter. Ludvig Beckman kindly sent me a copy of his paper, “Is Tere a Moral Right to Vote?” and then discussed this chapter by email. Tis article was drafed while I was still at the University of Geneva, and was fnished at Sciences Po. Troughout this time the Fonds National Suisse helped to fund me, as part of a project on “A Democratic Conception of Ethics.” I am grateful for their fnancial support, and to Domink Gerber, who helped to prepare this article for publication. 1. Cohen’s paper was only published in 2006, although he had presented it to audiences for a couple of years, as an extension of the “justifcatory minimalism” about human rights for which he advocated in “Minimalism About Human Rights” (Cohen 2004, 190–​213). Both papers are now

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available in Cohen (2011). However, all references in this paper are to its original appearance in a collection of essays in honor of G. A. Cohen, edited by C. Sypnowich (2006, 226–​48). 2. “To be sure, some human rights (e.g., right to life and to personal security) are not tied only to membership but are also more plausibly associated with demands of basic humanity, irrespective of membership in an organized political society. But the guiding thought behind the more capacious lists in the principal human rights instruments seems to be that an acceptable political society—​one that is above reproach in its treatment of individuals—​must attend to the common good of those who are subject to its regulations . . . and ensure the goods and opportunities that people in the territory and those subject to political rule need in order to take part in the political society” (Cohen 2006, 238). 3. “Regulations cannot impose obligations of compliance on those who are subject to them unless the regulations refect a concern with their good. If an account of political obligation along these lines is correct—​and it is more plausible than a theory of obligation that makes the justness of processes and outcomes a necessary condition for political obligations—​the rights that are required if individuals are to be treated as members would be identical to those that are required if the requirements imposed by law and other regulations are to be genuine obligations” (Cohen 2006, 239). 4. Tis also strikes me as the appropriate way to read Rawls’s Law of People’s. If so, Rawls is also immune to this objection by Tasioulas. 5.  According to Cohen (2006, 233), human rights include “a requirement of collective self-​ determination,” which requires a political process that represents the diverse interests and opinions of those bound by collective decisions; rights to dissent and appeal those decisions; and a government that normally justifes and explains decisions to people and does so with reference to their collective good. However, diverse political interests may not be equally represented politically. 6. I put the point this way because it is an implication of Cohen’s paper, I assume, that it is not just ignorance of the relevant alternatives that explains people’s beliefs about their situation and society. Moreover, some position like this seems necessary to counter the claims of those, like Gilabert or Christiano, who appear to suppose that people must frst be members of a democratic society before we can reasonably ascribe to them a legitimizing belief that some nondemocratic but “decent” society is morally compelling for them. (Christiano 2015, 466–​68; Gilabert 2012, 12–​13). It’s true that philosophers can’t grant people’s current beliefs and desires unquestioned normative status. But it’s one thing to insist that people should be aware of the alternatives and have the freedom openly to discuss them (and their personal and collective relevance) and another to insist that they must do so from within a democratic political set up—​as though the latter were magically free of all the epistemic or deliberative failings of liberal but undemocratic regimes, or unlikely to sufer from their own specifc problems (Lever and Chin 2017; Peter 2015, 487–​89). 7. Miller notes that “[i]‌t is important to distinguish the position of someone deprived of democratic rights in a society that otherwise extends these rights to all citizens, from the position of someone who lives in an undemocratic society” (Miller 2015a, n10). 8.  “[D]‌emocracy is a demanding political ideal. Te thesis that there is a human right to democracy—​while it may seem to elevate democracy—​threatens to strip away its demanding substance” (Cohen 2006, 227). 9. Miller (2015a, 181–​83) quotes from, and discusses, Sen’s claims.

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10. See Richard Bellamy’s interesting discussion of the diferences between legal and political constitutionalism in Bellamy (2007) and, on the reasons why we cannot distinguish constitutional from democratic government simply by identifying universal sufrage and the right to vote with the latter, see Cohen (1996) and Lever and Chin (2017). David Miller (2015a, 184) also notes the problems of legalism that may arise if we see democracy as a human right, rather than thinking of the solutions to social confict in terms of “political sociology” and the virtues of power-​sharing arrangements “in which leaders drawn from diferent factions have an incentive to reach compromises and to promote moderate solutions among their followers. Such regimes usually require quite elaborate constitutional engineering. . . . Electoral mechanisms may be part of the set up, but they are by no means the most important part.” 11. Grant Miller (2008) is an ingenious approach to the question, using the diferent points at which American states granted women the vote to investigate questions about women’s voting rights and child survival. Many thanks to Simon Wigley for bringing this to my attention. See Wigley and Akkoyunlu-​Wigley (2017) for an excellent discussion of the most recent literature on democracy and this aspect of human rights, and an attempt to control for the diferent aspects of democracy, and to distinguish democracy from “good government.” 12. Ludvig Beckman (2017, 7) aptly notes the equivocation between having a right to vote and exercising that right in arguments for the instrumental importance of democracy to the protection of human rights. 13. Rawls (1999, para. 9, pp. 71–​72) develops the idea of a consultation hierarchy and on p. 77, clarifes the idea that “each groups must be represented by a body that contains at least some of the group’s own members who know and are the fundamental interests of the group.” So, while it is possible that decent hierarchical societies might be caste societies, in the sense that people are born into diferent positions on a social hierarchy, with little if any mobility, they are nonetheless entitled to some forms of representation and self-​representation. 14. Miller (2015a, 183–​84) has an excellent discussion of the problem of transition as part of a reason for thinking that democracy may not be a human right—​or, indeed, the best way to protect even the most urgent human rights. As he notes, ethnic and religious minorities may be better protected by some form of consociational arrangement that falls short of democracy than by democratic government in its majoritarian forms. Te worry, in particular, is that democratic elections mean that “Rulers who can mobilize electoral majorities and thereby gain legitimacy are able to sweep away balancing institutions that beforehand had held them in check” (2015a, 183). However, the problem of transition matters, as long as we think democracy necessary for justice, even if we doubt that it is a human right. 15. Gilabert (2012, 27) is helpful here—​though brief. Urgency should be judged in terms of three criteria: (a) the moral importance of the interests at stake; (b) the likelihood and severity of the threats or obstacles to their fulflment; and (c) the feasibility of removing or substantially mitigating those threats by political action.

References Beckman, Ludvig. (2017). “Is Tere a Moral Right to Vote?” Ethical Teory and Moral Practice, (online publication), 1–​13. https://​link.springer.com/​article/​10.1007/​s10677-​017-​9824-​z.

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Bellamy, Richard. (2007). Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge: Cambridge University Press. Christiano, Tomas. (2011). “An Instrumental Argument for a Human Right to Democracy.” Philosophy & Public Afairs 39 (2): 142–​76. Christiano, Tomas. (2013). “An Egalitarian Argument for a Human Right to Democracy.” In Human Rights:  Te Hard Questions, edited by Cindy Holder and David Reidy, 301–​26. Cambridge: Cambridge University Press. Christiano, Tomas. (2015). “Self-​Determination and the Human Right to Democracy.” In Philosophical Foundations of Human Rights, edited by Rowan Cruf, S. Matthew Liao, and Massimo Renzo, 459–​80. Oxford: Oxford University Press. Cohen, Joshua. (1996). “Procedure and Substance in Deliberative Democracy.” In Democracy and Diference: Changing Boundaries of the Political, edited by Seyla Benhabib, 95–​119. Princeton, NJ: Princeton University Press. Cohen, Joshua. (2004). “Minimalism About Human Rights:  Te Most We Can Hope For?” Journal of Political Philosophy 12: 190–​213. Cohen, Joshua. (2006). “Is Tere a Human Right to Democracy?” In Te Egalitarian Conscience, edited by Christine Sypnowich, 226–​48. Oxford: Oxford University Press. Cohen, Joshua. (2011). Te Arc of the Moral Universe and Other Essays. Cambridge, MA: Harvard University Press. Gilabert, Pablo. (2012). “Is Tere a Human Right to Democracy? A Response to Joshua Cohen.” Revista Latinoamericana de Filosofía Política /​Latin American Journal of Political Philosophy 1 (2): 1–​37. Hampshire, Stuart. (1991). Innocence and Experience. Cambridge, MA: Harvard University Press. Hampshire, Stuart. (1993). “Liberalism:  Te New Twist.” New  York Review of Books, August 12,  43–​46. Lever, Annabelle, and Clayton Chin. (2017). “Democratic Epistemology and Democratic Morality: Te Appeal and Challenges of Peircean Pragmatism.” Critical Review of International Social and Political Philosophy, (online publication), 1–​22. https://​www.tandfonline.com/​doi/​ full/​10.1080/​13698230.2017.1357411. MacKinnon, Catharine A. (1993). “Crimes of War, Crimes of Peace (Oxford Amnesty Lectures).” In On Human Rights, edited by Stephen Shute and Susan Hurley, 83–​110. New York: Basic Books. Miller, David. (2015a). “Is Tere a Human Right to Democracy?” In Transformations of Democracy: Crisis, Protest and Legitimation, edited by Robin Celikates, Regina Kreide, and Tilo Wesche, 177–​91. London: Rowman & Littlefeld. Miller, David. (2015b). “Joseph Raz on Human Rights:  A Critical Appraisal.” In Philosophical Foundations of Human Rights, edited by Rowan Cruf, S. Matthew Liao, and Massimo Renzo, 232–​43. Oxford: Oxford University Press. Miller, Grant. (2008). “Women’s Sufrage, Political Responsiveness, and Child Survival in American History.” Quarterly Journal of Economics 123 (3): 1287–​327. Peter, Fabienne. (2015). “A Human Right to Democracy?” In Philosophical Foundations of Human Rights, edited by Rowan Cruf, S. Matthew Liao, and Massimo Renzo, 481–​90. Oxford: Oxford University Press. Rawls, John. (1999). Te Law of Peoples. Cambridge, MA: Harvard University Press. Raz, Joseph. (2010). “Human Rights Without Foundations.” In Te Philosophy of International Law, edited by Samantha Besson and John Tasioulas, 321–​38. Oxford: Oxford University Press.

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Copyright © 2019. Oxford University Press USA - OSO. All rights reserved.

Sen, Amartya. (1999). Development as Freedom. New York: Knopf. Sypnowich, Christine, ed. (2006). Te Egalitarian Conscience. Oxford: Oxford University Press. Tasioulas, John. (2012). “Towards a Philosophy of Human Rights.” Current Legal Problems 65 (1): 1–​30. Waldron, Jeremy. (1993). Liberal Rights. Cambridge: Cambridge University Press. Waldron, Jeremy. (2013). “Human Rights:  A Critique of the Raz/​Rawls Approach.” New  York University Public Law and Legal Teory Working Papers 405. https://​papers.ssrn.com/​sol3/​ papers.cfm?abstract_​id=2272745. Wenar, Leif. (2008). “Te Analysis of Rights.” In Te Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy, edited by Matthew H. Kramer, 251–​73. Oxford: Oxford University Press. Wigley, Simon, and Arzu Akkoyunlu-​Wigley. (2017). “Te Impact of Democracy and Media Freedom on Under-​5 Mortality, 1961–​2011.” Social Science & Medicine 190: 237–​46.

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Aferword Joshua Cohen

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i I am deeply grateful to Annabelle Lever and Debra Satz for editing this book, and for organizing the January 2017 Stanford conference at which the wonderful papers published here were frst presented. I am grateful, too, to all the contributors who invested so much time and thought in these papers. And I am grateful to the many friends and students who attended the conference—​some traveling great distances—​and participated in a series of lively discussions over two days. I learned a great deal from the participants, and was very much moved by their presence. Many of the attendees were former PhD students. As they know, I have always spent vast amounts of time preparing for classes. All that time—​over more than forty years—​ felt very well spent. As you can see from the papers, our discussions at the conference ranged widely across ethical and political values: from democracy and free expression to participation, accountability, inclusion, love, justice, equality, fairness, and human rights. We discussed those topics in a variety of practical contexts—​labor markets and universities, trade agreements and relations between frms, courts and referenda, streets and social media. Troughout, we wondered—​as we always must—​about the connections between our philosophical refections on ethical and political values and the realities of contemporary politics. Te conference started on January 20, 2017, so we had especially compelling reasons to wonder. Tis was a bleak day in the history of American politics—​the day of Donald Trump’s inauguration (comparably bleak as the day Ronald Reagan 251

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was inaugurated and the day we invaded Iraq). So, as we were just getting started, we had a new President who was hostile to everything we were doing. Hostile to the substantive values that animated our discussions, and hostile to the idea that thoughtful intellectual engagement is either intrinsically or instrumentally important. A  misologist, working overtime for the powerful and privileged, while distracting from those eforts by playing to our worst instincts. All of which prompts the question: why bother? Or more particularly, why were we talking about political theory and not about our new political dispensation? Hadn’t everything changed? No. Te fundamental conviction that guides the work of the political theorists I most identify with—​including, I think, those in the room—​is Lincoln’s “patient confdence in the ultimate justice of the people. Is there any better or equal hope in the world?” In the face of political calamity, we should refect on that patient confdence and consider what sustains it. It is sustained in part by the great moments and movements—​in the history of this country, from Seneca Falls and Stonewall, to sit-​down strikes in Flint, Rosa Park’s refusal, and vast numbers of young students resisting threats to their lives and education—​that have shaped the arc of the moral universe. And it is sustained, too, by a family of philosophical ideas: that politics is not just about power and interest, that right does make might, and that refection on what is right—​refection of the kind pursued at the meeting and in these papers—​ can both guide our judgment and quicken our hearts. Such refection is part of politics, not a distant observation on it. Tese fundamentals have not changed.

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Books On Democracy (with Joel Rogers). Middlesex: Penguin, 1983. Inequity and Intervention:  Te Federal Budget and Central America (with Joel Rogers). Boston: South End, 1986. Rules of the Game (with Joel Rogers). Boston: South End, 1986. Associations and Democracy (with Joel Rogers). London: Verso, 1995. Philosophy, Politics, Democracy: Selected Papers. Cambridge, MA: Harvard University Press, 2009. Rousseau: A Free Community of Equals. Oxford: Oxford University Press, 2010. Te Arc of the Moral Universe and Other Papers. Cambridge, MA: Harvard University Press, 2011. Te Norton Introduction to Philosophy. First edition co-​edited with Alex Byrne, Gideon Rosen, and Seana Shifrin. New  York:  Norton, 2015. Second edition co-​edited with Alex Byrne, Elizabeth Harman, Gideon Rosen, and Seana Shifrin. New York: Norton, 2018. Edited Collections Punishment (with A. John Simmons, Marshall Cohen, and Charles R. Beitz). Princeton, NJ: Princeton University Press, 1995. Constitutionalism, Democracy, and State Power: Promise and Performance (with Archon Fung). 4 volumes, Cheltenham, UK: Edward Elgar, 1996. For Love of Country? Debating the Limits of Patriotism. Boston: Beacon, 1996, 2002. [Spanish edition: Los límites del patriotism. Translated by Carme Castells. Barcelona: Paidós. 1999] A Community of Equals (with Joel Rogers). Boston: Beacon, 1999. [Spanish edition: Una Comunidad de iguales. Translated by Raúl Mejía and Verónica Lifrieri. Buenos Aires: Miño y Dávila, 2002]

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Metro Futures:  Economic Solutions for Cities and Teir Suburbs (with Joel Rogers). Boston:  Beacon, 1999. Is Multiculturalism Bad for Women? (with Matthew Howard and Martha Nussbaum). Princeton, NJ: Princeton University Press, 1999. Te New Inequality (with Joel Rogers). Boston: Beacon, 1999. Urgent Times (with Joel Rogers). Boston: Beacon, 1999. Are Elections for Sale? with Joel Rogers). Boston: Beacon, 1999, 2001. Whose Vote Counts? (with Joel Rogers). Boston: Beacon, 1999, 2001. Beyond Backyard Environmentalism (with Joel Rogers). Boston: Beacon, 2000. Do Americans Shop Too Much? (with Joel Rogers). Boston: Beacon, 2000. Is Inequality Bad for Our Health? (with Joel Rogers). Boston: Beacon, 2000. Will Standards Save Public Education? (with Joel Rogers). Boston: Beacon, 2000. Can We Put an End to Sweatshops? (with Joel Rogers). Beacon, 2001. What’s Wrong With a Free Lunch? (with Joel Rogers). Boston: Beacon, 2001. Can Working Families Ever Win? (with Joel Rogers). Boston: Beacon, 2002. Te Place of Tolerance in Islam (with Ian Lague). Boston: Beacon, 2002. A Way Out: Ghettoes and the Legacy of Racism (with Jef Decker and Joel Rogers). Princeton, NJ: Princeton University Press, 2002. Who Defended the Country? (with Joel Rogers). Boston: Beacon, 2003. Islam and the Challenge of Democracy (with Deb Chasman). Princeton, NJ: Princeton University Press, 2003. Just Marriage (with Deb Chasman). New York: Oxford University Press, 2004.

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Articles 1. “Afer the Fall” (with Joel Rogers). Boston Review, July–​August, 1984. 2. “Changing Course in Central America.” National Reporter 9, no. 1 (Winter 1985): 28–​30. 3. “Refections on Rousseau:  Autonomy and Democracy.” Philosophy and Public Afairs 15, no. 3 (Summer 1986): 275–​97. [Reprinted in: Te Social Contract Teorists: Critical Essays on Hobbes, Locke, and Rousseau, edited by Christopher W. Morris, 197–​213. Lanham, MD, and Oxford:  Rowman & Littlefeld, 1999; Rousseau and Law, edited by Tom Brooks. Aldershot: Ashgate, 2005; Jean-​Jacques Rousseau, edited by Timothy O’Hagan. Aldershot: Ashgate, 2007] 4. “Structure, Choice, and Legitimacy:  Locke’s Teory of the State.” Philosophy and Public Afairs 15, no. 4 (Fall 1986): 301–​24. [Reprinted in:  John Locke, Political Philosophy, edited with introductions by Vere Chappell, 27–​50. New  York and London:  Garland, 1992; Te Social Contract Teorists:  Critical Essays on Hobbes, Locke, and Rousseau, edited by Christopher W. Morris, 143–​66. Lanham, MD, and Oxford: Rowman & Littlefeld, 1999] 5. “An Epistemic Conception of Democracy.” Ethics 97, no. 1 (October 1986): 26–​38. 6. “Te 1986 Election” (with Joel Rogers). Mainichi Shimbun, November 3, 1986 [in Japanese]. 7. “Iranscam/​ Contragate” (with Joel Rogers). Mainichi Shimbun, February 20, 1987 [in Japanese]. 8. “Deliberation and Democratic Legitimacy.” In Te Good Polity, edited by Alan Hamlin and Phillip Petit. New Jersey:  Blackwell, 1989. [Reprinted in:  Contemporary Political Philosophy: An Anthology, edited by Robert Goodin and Philip Pettit. Oxford: Blackwell,

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1997; Deliberative Democracy, edited by James Bohman and William Rehg. Cambridge, MA:  MIT Press, 1997; Democracy, edited by David Estlund. Oxford:  Blackwell, 2002; Debates in Contemporary Political Philosophy, edited by Derek Matravers and Jon Pike. New York: Routledge, 2003] 9. “Te Economic Basis of Deliberative Democracy.” Social Philosophy and Policy 6, no. 2 (Spring 1989): 25–​50. 10. “‘Reaganism’ Afer Reagan” (with Joel Rogers). In Socialist Register, edited by Ralph Miliband and Leo Panitch. London 1988. 11. “‘Reaganism’ and the 1988 Election” (with Joel Rogers). Mainichi Shimbun, January 26, 1988 [in Japanese]. 12. “Too Much of Nothing: American Politics Enters the Post-​Reagan Era” (Parts 1, 2) (with Joel Rogers). Mainichi Shimbun, September 20 and, 27, 1988 [in Japanese]. 13. “Going Nowhere Fast:  Te 1988 Elections in Perspective” (with Joel Rogers). Mainichi Shimbun, December 1, 1988 [in Japanese]. 14. “Reply to Beehler” (with Joel Rogers). Canadian Journal of Philosophy 19, no. 4 (December 1989): 583–​87. 15. “Democratic Equality.” Ethics 99, no. 4 ( July 1989): 727–​51. [Reprinted in: Te Development and Main Outlines of Rawls’s Teory of Justice (Te Philosophy of Rawls, vol. 1), edited by Henry Richardson and Paul Weithman. New York: Garland, 1999] 16. “Knowledge, Morality, and Hope: Te Social Tought of Noam Chomsky” (with Joel Rogers). New Lef Review 187 (May–​June 1991): 5–​27. [Also published in: Noam Chomsky: Critical Assessments, vol. 3, edited by Carlos P. Otero. London: Routledge, 1994] [Spanish translation: “Conocimiento, moralidad y esperanza: el pensamiento social de Chomsky.” El Otro Derecho 7 (1991): 71–​98] 17. “Democratic Ideals and Substantive Values: Dahl on Democracy.” Journal of Politics 53, no. 1 (February 1991): 221–​25. 18. “Remarks on Market Censorship.” Agni 31/​32 (1990): 78–​84. 19. “Te Politics of Dealignment” (with Joel Rogers). Te Economist ( Japan), January 1991. 20. “Moral Pluralism and Political Consensus.” In Te Idea of Democracy, edited by David Copp, Jean Hampton, and John Roemer, 270–​91. Cambridge: Cambridge University Press, 1993. [Reprinted in:  Reasonable Pluralism (Te Philosophy of Rawls, vol. 5), edited by Henry Richardson and Paul Weithman. New York: Garland, 1999] 21. “Maximizing Welfare or Institutionalizing Democratic Ideals.” Politics and Society 19, no. 1 (March 1991): 39–​58. 22. “Minimalist Historical Materialism.” In On Te Track of Reason: Essays in Honor of Kai Nielsen, edited by Rodger Beehler, David Copp, and Béla Szabados. Boulder, CO: Westview, 1992. 23. “Okin on Justice, Gender, and the Family.” Canadian Journal of Philosophy 22, no. 2 ( June 1992): 263–​86. 24. “Te Gulf War and American Politics.” Agni 34 (1991): 12–​19. 25. “Associations in Democratic Governance” (with Joel Rogers). Politics and Society 20, no. 4 (December 1992): 393–​472. [Published with replies by Ellen Immergut, Andrew Levine, Jane Mansbridge, Phillipe Schmitter, Wolfgang Streeck, Andrew Szasz, Iris Young] [Spanish translation: Zona Abierta 84/​85 (1998): 3–​123] 26. “Democracy and Associations” (with Joel Rogers). Social Philosophy and Policy 10, no. 2 (Summer 1993): 282–​312. [Also published in Liberalism and the Economic Order, edited by

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Ellen Frankel Paul, Fred D.  Miller Jr., and Jefrey Paul, 282–​312. Cambridge:  Cambridge University Press, 1993] 27. “Associative Democracy” (with Joel Rogers). In Market Socialism: Te Current Debate, edited by Pranab Bardhan and John Roemer. Oxford: Oxford University Press, 1993. 28. “Freedom of Expression.” Philosophy and Public Afairs 22, no. 3 (Summer 1993):  207–​63. [Revised version reprinted in Te Idea of Toleration, edited by David Heyd. Princeton, NJ: Princeton University Press, 1996] 29. “Pluralism and Proceduralism.” Chicago-​Kent Law Review 69, no. 3 (1994): 589–​618. 30. “A More Democratic Liberalism.” Michigan Law Review 92, no. 6 (May 1994): 1503–​46. 31. “Solidarity, Democracy, Association” (with Joel Rogers). In Staat und Verbände. Sonderhef der Politischen Vierteljahresschrif, edited by Wolfgang Streeck. Wiesbaden: Westdeutscher, 1982. [Spanish translation: Zona Abierta 84/​85 (1998): 177–​218] 32. “My Utopia or Yours? Comments on John Roemer’s A Future for Socialism” (with Joel Rogers). Politics and Society 22, no. 4 (December 1994): 507–​21. [Also in Equal Shares: Making Market Socialism Work, edited by Erik Olin Wright. London: Verso, 1996] 33. “Te Natural Goodness of Humanity.” In Learning fom the History of Ethics, edited by Christine Korsgaard, Barbara Herman, and Andrews Reath. Cambridge:  Cambridge University Press, 1996. 34. “Sen on Equality.” Journal of Philosophy 2, no. 5 (May 1995): 275–​88. 35. “Freedom, Equality, Pornography.” In Justice and Injustice in Law and Legal Teory, edited by Austin Sarat and Tomas R. Kearns, 99–​137. Ann Arbor: University of Michigan Press, 1996. [Reprinted in: Prostitution and Pornography: Philosophical Debate About the Sex Industry in the U.S., edited by Jessica Spector. Stanford, CA: Stanford University Press, 2006] 36. “Procedure and Substance in Deliberative Democracy.” In Democracy and Diference: Changing Boundaries of the Political, edited by Seyla Benhabib. Princeton, NJ: Princeton University Press, 1996. [Reprinted in: Deliberative Democracy, edited by James Bohman and William Rehg. Cambridge, MA:  MIT Press, 1997; Philosophy and Democracy, edited by Tomas Christiano, 17–​ 38. Oxford:  Oxford University Press,  2003] [Spanish translation in Metapolitica 4, no. 14, 24–​47] 37. “Afer Liberalism” (with Joel Rogers). Boston Review, April–​May 1995. [Reprinted in: Political Economy of the Good Society Newsletter, March 1996; Voices of Mexico 32 ( July-​September 1995): 45–​53] 38. “O Arco do Universo Moral.” Antropolitica 1, no. 2 ( July–​December 1995). 39. “Remarks on Poverty and Inequality.” In Poverty and Inequality: A View From the Top, edited by Elisa Reis. 40. “No Way Out:  American Politics in 1992” (with Joel Rogers). Te Economist ( Japan), January 1992. 41. “Te Clinton Victory” (with Joel Rogers). Te Economist ( Japan), December 1992. [Also published in Links, February 1993] 42. Review of Freedom and Independence by Judith Shklar. Philosophical Review 80, no. 2 (1971): 288–​95. 43. Review Essay on Karl Marx’s Teory of History:  A Defence, by G.  A. Cohen. Journal of Philosophy 79, no. 5 (May 1982): 253–​73. 44. Review of Spheres of Justice, by Michael Walzer. Journal of Philosophy 83, no. 8 (August 1986): 457–​68. [Reprinted as: “Kommunitarismus und universeller Standpunkt.” Deutsche

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Zeitschrif fuer Philosophie 6 (1993):  1009–​19; “El Comunitarismo y el punto de vista universalista.” Agora 4 (1996) and La Politica 1 (1996)] 45. Review of Strong Democracy, by Benjamin Barber. Contemporary Sociology: 1–​4. 46. “Te Worst and the Dumbest: Perspectives on the Reagan Era” (with Joel Rogers). Monthly Review 38, no. 8 ( January 1987): 42–​51 [review of books by David Stockman and Jef McMahan] 47. Review of Adam Przeworski and John Sprague, Paper Stones. Ethics 98, no. 3 (April 1988): 596–​98. 48. Review of Claus Ofe, Contradictions in the Welfare State. Philosophical Review 97, no. 3 ( July 1988): 435–​40. 49. Review of Elizabeth Anderson, Value in Ethics and Economics. Journal of Economic Literature 33, no. 1 (March 1995): 192–​93. 50. “Democracy and Liberty.” In Deliberative Democracy, edited by Jon Elster. Cambridge: Cambridge University Press, 1998. 51. “Fighting All Creation:  Timmons Before the Court” (with Laurence Gold). Legal Times, January 13, 1997. 52. “Te Arc of the Moral Universe.” Philosophy and Public Afairs 26, no. 2 (Spring 1997): 91–​ 134. [Reprinted in: Subjugation and Bondage, edited by Tommy Lott. USA, MA: Rowman and Littlefeld, 1997] 53. “Directly-​Deliberative Polyarchy” (with Charles Sabel). European Law Journal 3, no. 4 (December 1997): 313–​42. 54. “Can Egalitarianism Survive Internationalization?” (with Joel Rogers). In Globalization, edited by Wolfgang Streeck, 175–​93. N.p.: n.p. 55. “Habermas on Democracy.” Ratio Juris 12, no. 4 (December 1999): 385–​416. 56. “Money, Politics, Political Equality.” In Facts and Values, edited by Alex Byrne, Robert Stalnaker, and Ralph Wedgwood. Festschrif for Judith Jarvis Tomson. Cambridge, MA: MIT Press, 2001. 57. “Our Town” (with Joel Rogers). Linguafanca Book Review, March 1999. 58. “Egalitarianism, Internationalization, and Citizenship.” In Revista Brasiliera de Cienicas Sociales (Brazil) 15. 44 (2000):  161–​ 70. http://​www.scielo.br/​scielo.php?script=sci_​ issuetoc&pid=0102-​690920000003&lng=es 59. “For a Democratic Society.” In Cambridge Companion to Rawls, edited by Samuel Freeman, 86–​138. Cambridge: Cambridge University Press, 2002. 60. “Taking People As Tey Are?” Philosophy and Public Afairs 30, no. 4 (2001): 363–​86. 61. “Power and Reason” (with Joel Rogers). In Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, edited by Archon Fung and Erik Olin Wright. London: Verso, 2003. 62. “Sovereignty and Solidarity in the EU” (with Charles Sabel). Governing Work and Welfare in a New Economy: European and American Experiments, edited by Jonathan Zeitlin and David Trubek, 345–​75. Oxford: Oxford University Press, 2003. [Reprinted in: Public Governance in the Age of Globalization, edited by Karl-​Heinz Ladeur. Ashgate: Aldershot, 2004] [Italian translation: “L’Europa sociale vista dagli USA”] 63. “Privacy, Pluralism, and Democracy.” In Law and Social Justice, edited by Joseph Keim Campbell, Michael O’Rourke, and David Shier. Cambridge, MA: MIT Press, 2005. 64. “John Rawls.” Boston Globe, December 1, 2002.

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65. “Democracy and Development:  Review of Stiglitz and Easterly” (with Joel Rogers). New Labor Forum (2003): n.p. [Portuguese translation: “Globalização, crescimento e pobreza.” Econômica 5, no. 2 (December 2003): 331–​41] 66. “Minimalism About Human Rights:  Te Best We Can Hope For?” Journal of Political Philosophy 12, no. 2 (2004): 190–​213. [Reprinted in Teories of Rights, edited by Ten Chin Liew. Aldershot: Ashgate, 2006] 67. “Radical Democracy” (with Archon Fung). Swiss Journal of Political Science 10, no. 4 (2004): 147–​210. [Italian translation: Il Ponte, 2007; Raisons Politiques, 2011] 68. “Te Importance of Philosophy:  Refections on John Rawls.” South Afican Journal of Philosophy 23, no. 2 (2004): 1–​6. 69. “A Human Right to Democracy?” In Te Egalitarian Conscience, edited by Christine Sypnowich, 226–​48. Oxford: Oxford University Press, 2006. 70. “¿Sufrir en silencio?.” In El derecho a resistir el derecho, edited by Roberto Gargarella, 79–​89. Buenos Aires: Miño y Dávila, 2005. 71. “Extra Rempublicam Nulla Justitia?” (with Charles Sabel). Philosophy and Public Afairs 34, no. 2 (2006): 147–​75. 72. “Global Democracy?” (with Charles Sabel). New  York University Journal of International Law and Policy 37, no. 4 (2006): 763–​97. 73. “Deliberative Democracy:  Refections on the Empirics.” In Can the People Decide? An Encounter Between Teory and Empirical Research, edited by Shawn Rosenberg, 219–​36. New York: Macmillan, 2007. 74. Foreword to Abhijit Banerjee, Making Aid Work. Cambridge, MA: MIT Press, 2007. 75. Foreword to Alan A. Stone, Movies and the Moral Adventure of Life. Cambridge, MA: MIT Press, 2007. 76. “Introduction” (with Tomas Nagel) to John Rawls, A Brief Inquiry Into the Meaning of Sin and Faith. Cambridge, MA: Harvard University Press, 2009. [Shortened version of the Introduction appeared in Times Literary Supplement, March 18, 2009] 77. “How Are We Doing: Refections on Moral Progress in America” (with Joel Rogers). Bulletin of the Political Economy of the Good Society 17, no. 1 (2008): 13–​19. 78. “Refections on Deliberative Democracy.” In Contemporary Debates in Political Philosophy, edited by Tomas Christiano and John Christman, 247–​64. London: Blackwells, 2009. 79. Foreword (with Abbas Milani) to Akbar Ganji, Te Road to Democracy in Iran. Cambridge, MA: MIT Press, 2008. 80. “Truth and Public Reason.” Philosophy and Public Afairs 37, no. 1 (Winter 2009): 2–​42. 81. “A Matter of Demolition? Susan Okin on Justice and Gender.” In Toward a Humanist Justice: Te Philosophy of Susan Moller Okin, edited by Debra Satz and Robert Reich, 41–​54. Oxford: Oxford University Press, 2009. 82. “Flexicurity” (with Charles Sabel). Pathways, Summer 2009. 83. “Philosophy, Social Science, Global Justice.” In Tomas Pogge and His Critics, edited by Alison Jaggar, 18–​45. London: Polity, 2011. 84. “Establishment, Exclusion, and Democracy’s Public Reason.” In Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon, edited by R. Jay Wallace, Rahul Kumar, and Samuel Freeman, 256–​75. Oxford: Oxford University Press, 2011. 85. “A Mobile Water Project: Mobile-​for-​Development Meets Human-​Centered Design” (with Eran Bendavid, Sanjick Jeon, Katherine Hofmann, and Terry Winograd). In Arguing About

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Justice: Essays for Philippe Van Parijs, edited Axel Gosseries and Yannick Vanderborgh, 245–​ 52. Louvain: Presses universitaires de Louvain, 2011. 86. “Getting Past Hobbes.” In Hobbes Today:  Insights for the 21st Century, edited by Sharon Lloyd, 3–​19. Cambridge: Cambridge University Press, 2014. 87. “Promoting Transparency in Social Science Research” (with Colin Camerer, Katherine Casey, Joshua Cohen, Kevin M. Esterling, Alan Gerber, Rachel Glennerster, Donald P. Green, Macartan Humphreys, Guido Imbens, David Laitin, Temina Madon, Edward Miguel, Leif Nelson, Brian A. Nosek, Maya Petersen, Richard Sedlmayr, Joseph P. Simmons, Uri Simonsohn, Mark Van der Laan). Science 343, no. 6166 (2014). doi: 10.1126/​science.1245317. 88. “If I Had a Hammer.” Bulletin of the American Academy of Arts & Sciences, Spring 2014, 31–​33 (Forum on Humanities in the Digital Age). 89. “Te Original Position and Scanlon’s Contractualism.” In Te Original Position, edited by Timothy Hinton, 179–​200. Cambridge: Cambridge University Press, 2015. 90. “A Beautiful Public Good.” Boston Review, Forum 3, 2017. 91. “Refections on Information Technology and Democracy.” Boston Review, March 2009. http://​ bostonreview.net/​joshua-​cohen-​refections-​on-​information-​technology-​and-​democracy. 92. “Always at the Afer Party.” Boston Review, January 2009. 93. Foreword (with Joel Rogers). In Property-​Owning Democracy: Rawls and Beyond, edited by Martin O’Neill and Tad Williamson, xiii–​xv. London: Wiley-​Blackwell, 2012. Selected Unpublished Writing (available on request)

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94. “Politics, Power, and Public Reason.” Tanner Lectures, University of California, Berkeley, 2007. 95. “On Classical Liberalism.” 2013. 96. “Democracy v. Citizens United.” 2011. 97. “Safe Mahalipa:  Difculties in Implementing a Social System for Safety in an Informal Settlement” (with Nan Zhang, Margaret Hagan, Joseph Kaye, Terry Winograd). 2014.

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Index

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i Accountability. See big money: and accountability; celebrity culture, and accountability; college sports, and accountability; diversity and inclusion action plan (DIAP): accountability for; love: and accountability; philia: and accountability; sexual assault: celebrity accountability for Ackerman, Bruce, 72 afective polarization, 16–​17, 21, 24, 30 aggregative democracy, 12–​14, 15–​16, 18, 19,  37–​38 problems with, 37–​38, 45, 46–​47, 48 See also equal consideration, principle of Akerlof, George, 56–​57 Araujo, Cheryl (case of ), 161–​62, 168–​69 Aristotle, 2, 29, 51, 56–​57n113 autonomy and deliberative democracy, 55, 55n105 as grounds for public reason, 43, 43n36 political,  75–​76 Baldwin, James, 3, 92, 93–​102, 103, 105–​8 basic liberties. See liberal rights Beckman, Ludvig, 239–​40n12 Bell Jr., Derrick A, 79 Bellamy, Richard, 238n10

Bertram, Christopher, 60n9 big money and accountability, 3, 151, 164–​65, 166, 168, 169 See also campaign fnance; money in politics Black Lives Matter, 92, 112–​13 Brexit, 68, 81 Brown, James, 151, 169 Brown University, 3, 110–​11 engagement with broader community, 147 history of, 112 protests at, 110–​11, 112–​13 See also Brown’s diversity and inclusion action plan (DIAP) Brown’s diversity and inclusion action plan (DIAP),  110–​11 accountability for, 136–​37, 146 collective deliberation in forming, 111, 115, 118, 119, 121, 122, 123–​24 and community input, 113–​14, 138, 148–​49 See also Brown University; diversity Buckley, William F., 98 Bush administration and foreign policy, 20–​21 and Iraq, 20 Bush, George, 22

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campaigns media coverage of, 25 and strains on democracy, 22–​23, 24 See also campaign fnance campaign fnance, 23, 57–​58, 75 reform, 11, 32, 57–​58 See also money in politics celebrity culture, 164–​65 and accountability, 152–​53, 164–​69 Christiano, Tomas, 236–​37n6, 237–​38 Citizens United, 57–​58 civic duties. See civic ethics civic education, 10, 11–​12, 29, 56–​57, 56–​57n113 civic equality, 77–​78, 77–​78n15 civic ethics, 11–​12, 29–​32 civic intimacy, 96 civic responsibility. See civic ethics Civil Rights Act, 91–​92 Clinton, Hilary, 20–​21 campaign, 22, 25 cluster hiring, 125, 141–​42 Cohen, Joshua, 1–​2, 3–​4, 12–​13, 38n8, 40, 45, 46, 47–​48, 49, 50, 51, 53–​54, 55–​56, 59, 69–​70, 71, 72–​74, 92, 106, 107, 111, 177–​78, 193, 197, 201–​2, 231, 234–​42, 243, 245 collective decision-​making, 38–​39, 43–​46,  47–​48 conditions of, 50, 56 democracy as, 42n30 and democratic legitimacy, 45 practicalities of, 48, 49 See also deliberative democracy; public deliberation; public reason collective self-​government, 38, 39 See also democracy: as collective self-​ government; public reason: and self-​government college sports and accountability, 155, 166–​68 common-​pool resources,  10–​11 See also democracy: as common-​pool resource compromise, 10, 18, 24, 25, 30, 238n10 See also spirit of compromise consent No Means No, 161–​63 See also exploitation: and consent; public reason: and consent; sexual assault: and consent

constitutional authority status (White), 73–​74, 76,  77–​78 constitutional government vs democratic, 238–​39 Cosby, Bill, 151, 152, 165–​66, 169 culture. See celebrity culture; democratic culture; law and norms; sexist culture Dahl, Robert, 19, 37–​38n4 deliberative democracy, 12–​13, 15–​16, 17, 18, 19, 30, 37, 38, 39–​40, 43–​47, 45n54, 46n56, 48, 49, 49n76, 50, 58–​59 and legitimacy, 44, 45, 46n58, 49, 58–​59 and liberal rights, 38n8, 54–​58, 59 realist critique of, 48–​49, 59, 59n119 vs social contract theory, 45 See also collective decision-​making; collective self-​government; public deliberation; public reason democracy, 2, 12, 36, 37–​38, 96, 239–​40 as collective self-​government, 38–​40 as common-​pool resource, 10–​12, 22 conditions of, 14–​16, 18–​20, 52–​54 diferent forms of, 239–​40 domestic sovereignty as a condition of, 202 a human right to, 231, 237–​40, 243–​45 vs liberalism, 36–​37 See also aggregative democracy; constitutional government, vs democratic; deliberative democracy; liberal rights: and democracy; love: and democracy; minimal democracy; pluralist democracy; racial justice: and American democracy, democratic culture, 10, 29, 50–​51, 56 See also democratic ethos; problem of origin; public deliberation: importance of democratic ethos for democratic decision-​making,  37–​38 as aggregation, 37–​38, 46–​47, 48, 48n70 (see also aggregative democracy) as collective decision-​making (see collective decision-​making) normative legitimacy of, 38, 40–​41 democratic ethos, 56, 98 See also democratic culture; public deliberation: importance of democratic ethos for

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democratic procedure, 12–​13 conditions of, 14, 15–​16, 18, 19 See also aggregative democracy; deliberative democracy; priority of procedure democratic sensuality, 96, 99 Democrats (of the Democratic Party), 15, 16, 21 Dewey, John, 52, 53, 56–​57n113 de Dijn, Annelien, 69–​70n2 Dione, E.J., 29 diversity building community to support, 132–​35 in the curriculum, 121–22 data on, 116–​18, 119–​20, 135–​36, 143–​44, 146 departmental plans for, 118–​22, 125, 136–​37 of faculty, 115–​17, 124, 125–​26, 141–​42 of graduate students, 127–​28, 144 professional development to promote, 117–​18, 126, 134, 145–​46 in research, 130–​31 of staf, 129–​30, 147–​48 of undergraduate students, 128–​29 See also Brown’s diversity and inclusion action plan (DIAP) domestic violence. See violence against women, domestic doux commerce thesis (Montesquieu), 224–​25 Du Bois, W. E. B., 96–​97 dualist democracy (Ackerman), 72 due consideration, 13 Dworkin, Andrea, 155 Dworkin, Ronald, 44 elite capture of political process, 68 protection from, 75, 78 elitism, 17, 30–​31 American, 17 See also elite capture of political process; political polarization Elster, Jon, 48, 48n70, 51, 51–​52n92 emotions in politics, 40 anti-​democratic sentiment, 53, 56 emotional bonds of solidarity, 39n13 as potentially corrupting infuence, 55–​56, 79 See also afective polarization; empathy; love; philia; sense of justice: and moral sentiments, empathy, 17 Enoch, David, 42

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epistemic integrity of democracy, 19–​20, 25 and erroneous experts, 20–​21 and media, 21, 25–​29 and polarization, 21 equal consideration, principle of, 12, 15–​16, 17, 18, 37–​38,  46–​47 and individual rights, 37–​38n4 limitations of, 38, 46–​47, 58 See also aggregative democracy ethical norms, 2 See civic ethics; culture; law and norms European Union (EU), 31, 68n1, 79, 81, 203, 204, 205, 206–​7, 208, 213–​14, 213n12, 215–​17, 219, 220, 221, 223 exploitation, 4, 178–​79, 191–​92 and college sports, 168 and consent, 178–​79 and free markets, 56–​57 of women, 154 See also justice in trade: exploitation-​based accounts of; justice in trade: and a principle of nonexploitation expressive interests (Cohen), 47 fair play, 10–​11 fake news, 27, 27n45, 55, 55–​56n107, 56n111 false necessity (Unger), 75–​76 Ferejohn, John, 80 fnancial crisis (2007–​8), 20, 216–​17 Frankfurt, Harry, 102–​4, 105 Freeland, Chrystia, 17 Fung, Archon, 56, 57n117 Galston, Bill, 29 Gastil, John, 80 general will, 39, 69–​70, 69–​70n2, 72–​73 Geuss, Raymond, 40n19 Gilabert, Pablo, 236–​37n6, 245–​46n15 Gilens, Martin, 17, 19 global justice, 177, 180, 185, 197, 201–​2 global public reason, 236–​37, 240–​41 and human rights, 241–​43 global regulations. See globalization; international trade; regulatory cooperation; regulatory equivalence global trade. See globalization; international trade; regulatory cooperation; regulatory equivalence

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globalization, 177, 193 incompatibility with democratic sovereignty, 4, 203–​4, 205–​8,  220–​21 See also international trade; justice in trade; regulatory cooperation; regulatory equivalence globalization trilemma (Rodrik), 205–​6 Gore, Al, 22–​23 government responsiveness, 18–​19 requirements for, 26, 30 threats to, 17, 23 Great Leap Forward (China), 238 Gutmann, Amy, 18, 24, 29 Habermas, Jürgen, 46n58, 50n80, 72–​73n11 Hacker, Jacob, 18 Hampshire, Stuart, 241 Harding, Major B., 167 Hayek, Friedrich, 224n30 Hayes, Christopher, 16, 17, 25 Hetherington, Marc, 16, 21 Hobbes, Tomas, 39 Hochschild, Arlie, 17, 31 human rights, 4, 232 grounded in human nature, 4, 232, 242 grounded in political function, 233,  245–​46 as minimal set of duties governments owe to citizens (Cohen), 234–​36 as setting limits to sovereignty of states (Rawls/​Raz),  233–​34 and social inequality, 240–​43 See also democracy: human right to hyper globalization (Rodrik), 206 idealistic pragmatism (de Bres), 193, 196 imaginative freedom (White), 75–​76 imaginative pluralism (de Bres), 197 inclusion in democratic legitimacy, 45n52, 49 and human rights, 4 right to social, 234–​35 norm of, 197, 197n46 See also Brown’s diversity and inclusion action plan (DIAP); diversity inclusive responsibility (White), 76–​77 international trade, 177 current circumstances of, 208–​11

See also justice in trade; regulatory cooperation; regulatory equivalence institutional socialization (Sharon). See public deliberation: importance of deliberative institutions for Iyengar, Shanto, 16 James, Aaron, 181–​82, 183, 185n28, 186–​88, 189n34, 192–​93, 193–​94n38,  194–​97 Johnson, Samuel, 159 justice in trade, 4, 177, 179 vs ethics of trade, 187, 191–​92 exploitation-​based accounts of, 177–​78, 179–​81,  182–​92 as fairness in practice ( James), 181–​82, 194–​97 international vs domestic, 184–​85 and a principle of nonexploitation, 180–​82, 187,  191–​92 reciprocity and, 186 See also international trade Kant, Immanuel, 205, 224 Kennedy, Anthony, 57–​58 King Jr., Martin Luther, 107 Kinsman, Erica, 167 Laumann, Edward, 156–​57 law and norms, 94–​95 infuence of culture and norms on law, 3,  159–​61 insufciency of law without norms and culture, 2, 3, 157 relationship of law to ethics and norms, 11 legitimacy democratic account of, 40 normative, 13, 38 output, 13, 14, 18 procedural, 13, 14, 18 and public reason, 40–​41, 42 rationalist account of, 40, 42 Rawls’ account of, 93 Rousseau’s account of, 69–​70 Sociological, 13 See also deliberative democracy: and legitimacy; democratic decision-​making: normative legitimacy of Letta, Enrico, 154–​55 Lever, Annabelle, 77–​78n15

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liberal rights, 36–​38 and democracy, 36–​38, 46–​48 See also deliberative democracy: and liberal rights liberalism,  36–​37 See also liberal rights Lincoln, Abraham, 68, 106, 252 love, 3, 97, 102, 103–​4 and accountability, 97–​98 and democracy, 92, 96, 97, 103, 105 as an ethical ideal, 102–​3 and racial justice, 97–​98, 103, 105, 106–​8 (see also self-​love: Black) reason-​generating feature of, 102 and sacrifce, 104–​5 and social justice, 3, 91–​92, 104–​5, 107–​8 value of, 102 See also self-​love; strains of commitment (Rawls): and love MacKinnon, Catherine, 235 Madison, James, 50, 55–​56, 55n105 Manne, Kate, 96–​97n5 Marx, Karl, 184 McCain, John, 15, 23 McCain-​Feingold act,  57–​58 McCormick, John, 38n8 media and accountability, 166 ethical responsibilities of, 27–​29 impact on public opinion, 52, 55n102 regulation of, 32, 55 and threats to democracy, 11–​12, 20–​21, 25, 55, 56,  57–​58 See also fake news; new media, Meggs, Willie, 166–​67 Mendus, Susan, 103–​5 #MeToo, 153, 155, 164, 165–​66 Mill, John Stuart, 29, 56–​57n113 Miller, David, 48, 233–​34, 237, 237n7, 238n10, 243, 244–​45n14 Miller, Grant, 238–​39n11 Miller, Richard, 180–​82, 180–​81n14, 184, 184n26, 185–​87, 190 Mills, C. Wright, 17 minimal democracy, 12–​13, 14, 15–​16, 17, 19 minipublics (Fung), 79–​80 money. See accountability: big money and; campaign fnance; money in politics

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money in politics, 15, 23, 57–​58, 75, 78, 79 See also campaign fnance motivated reasoning, 21, 30 Nagel, Tomas, 44n43, 201–​3, 205, 220–​21,  223 Nairn, Tom, 77–​78 new media (Facebook, Google, Twitter), 21,  26–​29 and public deliberation, 55–​56 responsibilities of, 27–​29 as a threat to democracy, 26–​27, 55–​56, 55–​56n107 See also fake news norms. See culture; ethical norms; law and norms Obama, Barack campaign, 22, 23 on campus sexual assault, 155, 163 oligarchy Rousseau on, 71n8 threat of, 68 (see also elite capture of political systems) Ostrom, Elinor, 10 Page, Benjamin, 17, 19 philia, 92, 97–​98 and accountability, 97–​98 philosophy,  193–​94 See also political philosophy phishing equilibrium (Akerlof and Shiller),  56–​57 Pierson, Paul, 18 Piketty, Tomas, 17 pluralism, 12, 17, 18, 53 reasonable, 41, 43, 47 See also imaginative pluralism (de Bres); pluralist political morality pluralist democracy, 11–​12, 13, 18 pluralist political morality, 202, 236–​37 and international trade, 204–​6, 211 policy drif (Pierson and Hacker), 18 political association, 12, 15–​16 bonds of solidarity, 39n13 threats to, 15, 16 vertical and horizontal division of (Hayes), 16

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political culture, 54, 77–​78, 94 See also democratic culture; democratic ethos; sense of justice political equality, 12–​13 threats to, 17, 23 violations of, 14–​15, 19 political legitimacy. See legitimacy political philosophy, 4–​5, 40n19, 196 political polarization, 11, 16, 25 horizontal,  16–​17 reaching across, 30–​31 vertical, 17 See also afective polarization; social cohesion politicians, 24, 72, 75 ethical responsibilities of, 22–​23, 25 popular sovereign as active, 73–​78 as deliberative, 72–​73, 79–​81 Rousseau’s account of the, 69–​72 popular sovereignty elitism concern, 68, 75, 78, 81 populism concern, 68, 79, 81 Rousseau’s conception of, 69, 72–​73 populism, 68 populist capture of political process, 68, 79 positive vs negative integration distinction (Tinbergen),  206–​7 priority of procedure, 14–​15, 23 problem of origin (Sharon), 51, 56–​57 See also civic education protest novel, 101 Przeworski, Adam, 12–​13 public deliberation, 12–​13, 45n49, 45–​46 conditions for, 50 demandingness of, 50–​51, 55, 56 importance of deliberative institutions for,  51–​54 importance of democratic ethos for, 56–​58 See also collective decision-​making; deliberative democracy; public reason public reason, 12–​13, 40–​41 autonomy account of, 43 and consent, 41, 41n24, 44n47 democratic account of, 43–​45, 46 as equal-​treatment,  41–​42 and idealization, 42–​43, 44, 48–​49 and legitimacy, 49 as self-​defeating, 43, 45 and self-​government, 43–​44, 43–​44n41,  45–​46

and truth, 42 the unreasonable vs reasonable, 44 See also global public reason; public deliberation; shared reasons Quong, Jonathan, 40–​41n22, 41, 43, 43n36 racial injustice, 91–​92 and American democracy, 92, 96, 103, 105 See also racism; self-​respect: racism as a threat to, racism, 95 and higher education, 112, 117 and public deliberation, 55 See also racial injustice; self-​respect: racism as a threat to, rape culture, 156–​57, 159–​61 Rawls, John, 1, 21, 40–​41, 43n40, 44n43, 50, 51n90, 53, 91–​95, 97, 101–​2, 103–​4, 105–​6, 177, 184–​85, 202, 224, 233, 235n4, 236, 242n13,  243–​46 Raz, Joseph, 42, 43n36, 44n43, 232–​34, 235–​36,  245–​46 reason in politics, 40, 49, 51, 55–​56 and truth (rationalist challenge), 42 See also public deliberation; public reason regulatory cooperation, 4, 204–​5, 210–​15, 223 democratic control over, 219–​20 as a threat to sovereignty, 218–​19 See also regulatory equivalence regulatory equivalence, 4, 203–​4, 205, 209, 210, 211–​14, 218, 224 and accountability, 219–​20 concerns about, 217 vs mutual acceptance, 213 possibility for realizing Kant’s “negative surrogate,”  224–​25 reconciling globalization and national democracy,  221–​23 See also globalization; international trade; regulatory cooperation Reich, Robert, 31 Renwick, Alan, 81n21 Republicans (of the Republican Party), 15, 16, 21 Rice, Ray, 155, 165, 169 Richards, Robert, 80 Risse, Matthias, 177–​78, 179–​82, 183, 184–​85, 186, 187–​88, 191n38, 192–​93, 194–​95,  196–​97

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Rodrik, Dani, 205–​6, 220–​21 Rose, Derrick, 165 Rosenblatt, Helena, 71 Rousseau, Jean-​Jacques, 1, 2, 39, 39n13, 45, 46, 50, 59, 69, 69–​70n2, 70n7, 71n8, 73–​74n12, 74n13, 76, 81 on civic education, 29, 56–​57n113 government vs sovereign (distinction), 70 on law, 70 on popular sovereignty, 72n10, 72–​75, 78, 78n16, 79 theory of legitimate polity, 69–​72, 74 Sanders, Bernie campaign, 23 Saunders-​Hastings, Emma, 31 Scharpf, Fritz, 206–​7, 220–​21 Schumpeter, Joseph, 12–​13, 50–​51 self-​love,  99–​100 Black,  99–​100 See also self-​respect self-​respect,  96–​97 racism as a threat to, 96–​97, 99–​100, 101 social bases of (Rawls), 92–​93 See also self-​love Sen, Amartya, 238 sense of justice (Rawls), 93–​94, 95 and moral sentiment, 93–​94, 95, 104–​5 See also stability (Rawls); strains of commitment (Rawls) sexism. See rape culture; sexist culture; sexual assault; violence against women sexist culture, 3 and domestic labor, 154 and rape law, 157–​61 sexual attitudes, 156–​57 See also rape culture sexual assault, 151–​52, 156 celebrity accountability for, 151, 152–​53,  164–​69 on college campuses, 155, 163–​64 and consent, 152, 157–​61 and US law, 157–​61 See also rape culture; Title IX; violence against women sexual attitudes (American) 156–​57 See also rape culture; sexist culture sexual violence. See sexual assault; violence against women: sexual,

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shared reasons, 41, 43–​44, 45 See also public reason Shiller, Robert, 56–​57 Silver, Adam, 168 social cohesion, 15–​17 requirements for, 30, 31 threats to, 21, 25, 26 social contract theory, 39, 45, 92–​94 spirit of compromise, 14, 18, 24 See also compromise stability (Rawls), 51n90, 91, 94–​95, 104 See also sense of justice; strains of commitment strains of commitment (Rawls), 91–​92, 94,  105–​6 and love, 91–​92, 97, 99–​100, 103–​6 and racial injustice, 91–​92, 94–​95, 98, 99–​100 See also sense of justice (Rawls); stability (Rawls) Tasioulas, John, 235, 235n4, 246 technocracy vs domestic values, 203, 205–​8 Tompson, Dennis, 18, 24 Title IX, 163–​64 de Tocqueville, Alexis, 10, 50, 56–​57n113 trade. See international trade; justice in trade tragedy of the commons, 9, 22 See also common-​pool resources; democracy: as common-​pool resource Transatlantic Trade and Investment Partnership (TTIP), 203, 205, 220, 221–​22 Trump, Donald, 251–​52 campaign, 15, 20–​21, 22, 23, 25, 55 populism of, 68 Tuck, Richard, 69–​70n2, 70, 74, 74n13, 78n16 Tyson, Mike, 159–​60 Unger, Roberto, 75–​76 violence against women, 154–​55 domestic, 151, 154–​55 sexual, 3, 154–​55, 156–​57 See also rape culture; sexual assault voting, 48 fraud, 15 vs public deliberation, 45–​46, 48 reform, 29, 79 sufrage, 153–​54, 238–​39x turnout, 23, 29

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sufrage, 153–​54, 238–​39,  241–​42 See also violence against women World Trade Organization (WTO), 4, 179–​80, 181, 181n15, 182–​83, 182–​83n23, 185–​86, 187, 188–​91, 189n34, 195–​96, 201–​2, 203–​4, 206, 207–​8, 207–​8n8, 210–​11,  221 Wright, Richard, 100–​1 Young, Iris Marion, 31, 38, 45n52 Zurn, Christopher, 80

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Wall, Steven, 43n36 Wertheimer, Alan, 184 white supremacy, 96, 99, 100–​1 Whitman, Walt, 50, 52 Williams, Bernard, 40n19 Winston, Jameis, 166–​68 Wollner, Gabriel, 179, 181–​82, 183, 187–​88, 192–​93, 194–​95,  196–​97 women in decent hierarchical societies, 241–​42 status of, 153–​54

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Copyright © 2019. Oxford University Press USA - OSO. All rights reserved. Ideas That Matter : Democracy, Justice, Rights, edited by Debra Satz, and Annabelle Lever, Oxford University Press USA - OSO,