Rationality, Democracy, and Justice: The Legacy of Jon Elster 9781107065239, 2014027965, 9781107588165

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Rationality, Democracy, and Justice The Legacy of Jon Elster

This volume advances the research agenda of one of the most remarkable political thinkers of our time: Jon Elster. With an impressive list of contributors, it features studies in five topics in political and social theory: rationality and collective action, political and social norms, democracy and constitution making, transitional justice, and the explanation of social behavior. Additionally, this volume includes chapters on the development of Elster’s thinking over the past decades. Like Elster’s own writings, the essays in this collection are problem-driven, nonideal inquiries of practical relevance. This volume closes with lucid comments by Jon Elster. Claudio López-Guerra is a research professor in the department of political studies at the Center for Research and Teaching in Economics, CIDE, Mexico City. He is the author of Democracy and Disenfranchisement: The Morality of Electoral Exclusions (2014). His work has appeared in such journals as the Journal of Political Philosophy; Politics, Philosophy, and Economics; and Social Theory and Practice. Julia Maskivker is an assistant professor in the department of political science at Rollins College. She is the author of Self-Realization and Justice: A Liberal-Perfectionist Defense of the Right to Freedom from Employment (2012). Her work has been published in journals such as the Journal of Moral Philosophy, Contemporary Political Theory, and the Journal of Global Ethics.

Rationality, Democracy, and Justice The Legacy of Jon Elster

Edited by CLAUDIO LÓPEZ-GUERRA Center for Research and Teaching in Economics (CIDE), Mexico City

JULIA MASKIVKER Rollins College, Winter Park, Florida

32 Avenue of the Americas, New York, ny 10013 2473, usa Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107065239 © Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Rationality, democracy, and justice : the legacy of Jon Elster / edited by Claudio López Guerra, Julia Maskivker. pages cm isbn 978 1 107 06523 9 (hardback) 1. Elster, Jon, 1940 2. Philosophy and social sciences. 3. Political science. 4. Rationalism Political aspects. 5. Rational choice theory. I. López Guerra, Claudio, editor of compilation. II. Maskivker, Julia. b4445.e474r37 2014 320.092 dc23 2014027965 isbn 978 1 107 06523 9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Rationality, Democracy, and Justice The Legacy of Jon Elster

This volume advances the research agenda of one of the most remarkable political thinkers of our time: Jon Elster. With an impressive list of contributors, it features studies in five topics in political and social theory: rationality and collective action, political and social norms, democracy and constitution making, transitional justice, and the explanation of social behavior. Additionally, this volume includes chapters on the development of Elster’s thinking over the past decades. Like Elster’s own writings, the essays in this collection are problem-driven, nonideal inquiries of practical relevance. This volume closes with lucid comments by Jon Elster. Claudio López-Guerra is a research professor in the department of political studies at the Center for Research and Teaching in Economics, CIDE, Mexico City. He is the author of Democracy and Disenfranchisement: The Morality of Electoral Exclusions (2014). His work has appeared in such journals as the Journal of Political Philosophy; Politics, Philosophy, and Economics; and Social Theory and Practice. Julia Maskivker is an assistant professor in the department of political science at Rollins College. She is the author of Self-Realization and Justice: A Liberal-Perfectionist Defense of the Right to Freedom from Employment (2012). Her work has been published in journals such as the Journal of Moral Philosophy, Contemporary Political Theory, and the Journal of Global Ethics.

Rationality, Democracy, and Justice The Legacy of Jon Elster

Edited by CLAUDIO LÓPEZ-GUERRA Center for Research and Teaching in Economics (CIDE), Mexico City

JULIA MASKIVKER Rollins College, Winter Park, Florida

32 Avenue of the Americas, New York, ny 10013 2473, usa Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107065239 © Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Rationality, democracy, and justice : the legacy of Jon Elster / edited by Claudio López Guerra, Julia Maskivker. pages cm isbn 978 1 107 06523 9 (hardback) 1. Elster, Jon, 1940 2. Philosophy and social sciences. 3. Political science. 4. Rationalism Political aspects. 5. Rational choice theory. I. López Guerra, Claudio, editor of compilation. II. Maskivker, Julia. b4445.e474r37 2014 320.092 dc23 2014027965 isbn 978 1 107 06523 9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Rationality, Democracy, and Justice The Legacy of Jon Elster

This volume advances the research agenda of one of the most remarkable political thinkers of our time: Jon Elster. With an impressive list of contributors, it features studies in five topics in political and social theory: rationality and collective action, political and social norms, democracy and constitution making, transitional justice, and the explanation of social behavior. Additionally, this volume includes chapters on the development of Elster’s thinking over the past decades. Like Elster’s own writings, the essays in this collection are problem-driven, nonideal inquiries of practical relevance. This volume closes with lucid comments by Jon Elster. Claudio López-Guerra is a research professor in the department of political studies at the Center for Research and Teaching in Economics, CIDE, Mexico City. He is the author of Democracy and Disenfranchisement: The Morality of Electoral Exclusions (2014). His work has appeared in such journals as the Journal of Political Philosophy; Politics, Philosophy, and Economics; and Social Theory and Practice. Julia Maskivker is an assistant professor in the department of political science at Rollins College. She is the author of Self-Realization and Justice: A Liberal-Perfectionist Defense of the Right to Freedom from Employment (2012). Her work has been published in journals such as the Journal of Moral Philosophy, Contemporary Political Theory, and the Journal of Global Ethics.

Rationality, Democracy, and Justice The Legacy of Jon Elster

Edited by CLAUDIO LÓPEZ-GUERRA Center for Research and Teaching in Economics (CIDE), Mexico City

JULIA MASKIVKER Rollins College, Winter Park, Florida

32 Avenue of the Americas, New York, ny 10013 2473, usa Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107065239 © Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Rationality, democracy, and justice : the legacy of Jon Elster / edited by Claudio López Guerra, Julia Maskivker. pages cm isbn 978 1 107 06523 9 (hardback) 1. Elster, Jon, 1940 2. Philosophy and social sciences. 3. Political science. 4. Rationalism Political aspects. 5. Rational choice theory. I. López Guerra, Claudio, editor of compilation. II. Maskivker, Julia. b4445.e474r37 2014 320.092 dc23 2014027965 isbn 978 1 107 06523 9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Contents

Contributors Preface

page vii xi

part i jon elster’s social and political thought 1. The Road toward Disillusion: Explanations, Predictions, and Prescriptions in the Work of Jon Elster Roberto Gargarella and Félix Ovejero

3

part ii rationality and collective action 2. Why It’s Rational to Vote Gerry Mackie

21

3. How Countries Can Negotiate to Allocate Greenhouse-Gas Emissions: A Simple Proposal John E. Roemer

50

4. On Irreversible Harm (with Special Reference to Climate Change) Cass R. Sunstein

59

part iii political and social norms 5. Flexible and Rigid Constitutions: A Post-Kelsenian Typology of Constitutional Systems Pasquale Pasquino 6. What Makes People Tip Diego Gambetta 7. A Social-Psychological Theory for Female Suicide Bombings Julia Maskivker

85 97 115

v

vi

Contents

part iv democracy and constitution making 8. Decoding the Genesis of Political Order: Jon Elster on Precommitment and Constitutional Processes in Eastern Europe Claus Offe 9. Enfranchisement and Constitution Making Claudio López-Guerra

145 168

part v transitional justice 10. Compensation and Land Restitution in Transitions from War to Peace Pablo Kalmanovitz

191

part vi the social sciences 11. Jon Elster and the Social Sciences Daniel Little

223

part vii discussion 12. Comments Jon Elster

251

Index

279

Contributors

Diego Gambetta (Ph.D., University of Cambridge, 1983) is Professor of Sociology and Official Fellow at Nuffield College, University of Oxford. He is the author of many articles and books on analytical sociology, mafias, signaling theory and applications, trust, and violent extremists. His recent publications include Codes of the Underworld (Princeton University Press, 2009), Streetwise (Russell Sage Foundation, 2005), and The Sicilian Mafia (Harvard University Press, 1993). Roberto Gargarella (J.D., University of Chicago, 1993) is Professor of Constitutional Theory and Political Philosophy at the University of Buenos Aires. He has written on constitutional theory, legal philosophy, and distributive justice. His publications include The Legal Foundations of Inequality (Cambridge University Press, 2010), The Scepter of Reason (Springer, 2001), La Justicia Frente al Gobierno (Ariel, 1996), and Critica de la Constitucion (Paidos, 2004). Pablo Kalmanovitz (Ph.D., Columbia University, 2010) is a Max Weber Fellow in the Department of Law at the European University Institute. Before coming to EUI, he was ACLS New Faculty Fellow in the Political Science Department at Yale University and Visiting Professor at the Universidad de los Andes Law School in Bogotá, Colombia. He has published book chapters and journal articles on transitional justice and on the laws and ethics of armed conflict, and he is coeditor of two volumes for the Forum for International Criminal and Humanitarian Law Publication Series, Law in Peace Negotiations (2009) and Distributive Justice in Transitions (2010). Daniel Little (Ph.D., Harvard University, 1977) is Chancellor of the University of Michigan–Dearborn. He serves as Professor of Philosophy at UM–Dearborn and as Professor of Sociology at UM–Ann Arbor. His most recent books include The Future of Diversity (Palgrave, 2010, edited with Satya Mohanty), New vii

viii

List of contributors

Contributions to the Philosophy of History (Springer, 2010), and The Paradox of Wealth and Poverty (Westview Press, 2003). Claudio López-Guerra (Ph.D., Columbia University, 2008) is Research Professor in the Department of Political Studies at the Center for Research and Teaching in Economics (CIDE, Mexico City). He specializes in normative political theory. He is the author of Democracy and Disenfranchisement: The Morality of Electoral Exclusions (Oxford University Press, 2014). Gerry Mackie (Ph.D., University of Chicago, 2000) is Associate Professor of Political Science at the University of California, San Diego. He specializes in contemporary democratic theory and the study of social norms and collective action. His publications include Democracy Defended (Cambridge University Press, 2003) and a number of articles in journals such as Political Theory; Politics, Philosophy and Economics; and The American Sociological Review. Julia Maskivker (Ph.D., Columbia University, 2009) is Assistant Professor of Political Science at Rollins College. She specializes in analytical political philosophy, specifically on contemporary theories of justice and global ethics. Her publications include Self-Realization and Justice (Routledge, 2012) and articles in journals such as The Journal of Global Ethics, Contemporary Political Theory, The Human Rights Review, and The Journal of Moral Philosophy. Claus Offe (Ph.D., University of Frankfurt, 1968) is Professor of Political Science at Humboldt University, Berlin. His fields of research include political sociology, social policy, and democratic theory. Among his recent publications in English are Reflections on America: Tocqueville, Weber, and Adorno in the United States (Polity, 2005); Varieties of Transition (MIT Press, 1996); and Modernity and the State (MIT Press, 1996). Félix Ovejero (Ph.D., University of Barcelona, 1985) is Professor of Economics, Ethics, and Social Sciences at the University of Barcelona. He specializes in political and ethical theory. His publications include Proceso Abierto: El Socialismo Después del Socialismo (Kriterios, 2005), El Compromiso del Método (Paidos, 2004), La Quimera Fértil (Icaria, 1994), and Intereses de Todos, Acciones de Cada Uno (Paidos, 1989). Pasquale Pasquino (Ph.D., University of Naples, 1971) is Global Distinguished Professor in the Department of Politics at New York University and a Senior Research Fellow at the Centre National de la Recherche Scientifique, Paris. His fields of interest include political and constitutional theory and the history of political thought. He has authored numerous books, such as Sieyes et l’invention de la constitution en France (Odile, 1998), and articles in journals such as Political Theory and History of European Ideas. John E. Roemer (Ph.D., University of California at Berkeley, 1976) is the Elizabeth S. and A. Varick Professor of Political Science and Economics at Yale

List of contributors

ix

University. His work focuses on political economy and theories of distributive justice. He is the author of many influential articles and more than ten books, including, most recently, Democracy, Education, and Equality (Cambridge University Press, 2006) and Political Competition (Harvard University Press, 2001). Cass R. Sunstein (J.D., Harvard Law School, 1978) is Robert Walmesly University Professor at Harvard University. He is the author of many articles and books, including Valuing Life (University of Chicago Press, 2014), Why Nudge? (Yale University Press, 2014), Simpler (Simon and Schuster, 2013), A Constitution of Many Minds (Princeton University Press, 2009), Going to Extremes (Oxford University Press, 2009), and Nudge (Yale University Press, 2008, with Richard Thaler).

Preface

The following ideas are prominent buildings in the skyline of contemporary social and political theory: To explain social facts and events we have to understand, in a nonfunctionalist way, the behavior of individuals, who are often irrational. Preference-satisfaction (one of the hallmarks of modern utilitarianism) is a flawed ideal if desires are formed in a nonautonomous fashion, as is often the case. The point of democratic politics is the transformation of individual preferences through deliberation, not the aggregation of preexisting preferences. The study of justice comprises not only domestic and global distributive issues, but also narrower matters, such as those involved in problems of local and transitional justice. Institutional design should aim at the establishment of rules to minimize poor decision making (e.g., biased, irrational, self-interested), rather than to attain specific goals. These ideas evoke the name of one of the most exceptional thinkers of our time: Jon Elster. In the past half century, Elster has made seminal contributions in a number of disciplines, including philosophy, political science, psychology, law, and economics. The purpose of this volume is to celebrate Elster’s career achievements and to advance his research agenda. The essays in this collection are Elsterian in various ways. First, and most plainly, some of the chapters are about Elster’s body of work. This is the case of the bookend contributions. Roberto Gargarella and Félix Ovejero (Chapter 1) provide an overview of the development of Elster’s ideas and their impact in various fields of study. As the authors suggest, there have been significant turns in Elster’s oeuvre, notwithstanding its continuities. The chapter discusses Elster’s participation in the so-called September Group of analytical Marxists, his interest in the notion of rationality, his attention to the ubiquity of irrationality, and xi

xii

Preface

his case for the articulation of mechanisms in the explanation of social phenomena. In addition, Gargarella and Ovejero discuss the connection between these topics and Elster’s normative concerns, specifically his interest in the theory and practice of justice and democracy. The chapter explains how Elster has become more and more suspicious of grand theories, both normative and explanatory, distrusting excessively ambitious projects that seem detached from reality. The other bookend chapter, Daniel Little’s essay (Chapter 11), is also centered on Elster’s body of work, specifically on his contribution to the theory of rationality, social welfare theory, philosophy of social science, and analytical Marxism. Little highlights the value of Elster’s work for the development of a compelling account of the motivations and reasoning processes that lead people to behave as they do in real-life settings. Two features of Elster’s work are particularly important, according to Little: the way in which it brings social science to bear on broader issues in political philosophy, and the way in which it deploys philosophical tools to examine and improve scientific inquiry in the study of human behavior. The rest of the chapters, though not focused on Elster’s writings (with the exception of Claus Offe’s contribution) are nevertheless related to his work in two ways. On the one hand, they are studies in four Elsterian topics: rationality and social action, political and social norms, democracy and constitution making, and transitional justice. And on the other hand, the contributors share an Elsterian approach to political theorizing. Throughout his career – indeed, long before the beginning of current debates on the importance of “nonideal” theory – Elster has illustrated how normative claims can and should be better connected to reality. Insofar as the morality of social institutions depends on empirical factors, the limitations of the social sciences bear directly on the ambitions of normative theory. The essays in this volume are, like Elster’s own writings, problem-driven, nonideal exercises on questions of practical relevance. Gerry Mackie (Chapter 2) defends the possibility of rational voting. The so-called paradox of nonvoting claims that because one’s vote is not pivotal, it is not instrumentally rational to vote. Mackie challenges the view that the act of voting is necessarily irrational. Instead, he argues that voting is possibly rational and that it is hypothetically rational for many individuals in many circumstances. Mackie outlines what we would observe of voting if his proposed account of motivation were to be largely correct. The paradox of nonvoting insists that redundant votes have no causal influence on the outcome. But this wrongly assumes that voters care only about whether an issue wins or loses, not about vote margins. If voters do care about margins, then each vote is pivotal toward that end. Smallness of benefit does not mean absence of benefit. Mackie points out that people often contribute imperceptibly, but rationally, to low-cost, continuous public goods. For these reasons, Mackie concludes that voting can be rational. According to Elster, there are three ways of making collective decisions in modern societies: bargaining, arguing, and voting. These are often combined. Wage bargaining, for instance, is actually a combination of bargaining and

Preface

xiii

arguing over a number of issues, such as worker productivity. John E. Roemer (Chapter 3) contends that the solution to what is presumably the most important collective action problem facing humanity today, namely, the reduction of greenhouse gas emissions, also involves a combination of bargaining and arguing. Roemer suggests that there is a salient focal point in the bargaining process between China and the United States – the two largest emitters. The focal point is given by the dates in which, under the status quo or “business as usual,” China would converge to the United States and other developed countries in GDP per capita. Thus, if China were to catch up with the United States in seventy-five years, for example, an agreement should force countries to reduce their emissions in ways that preserve the current date of convergence. Deviations from the focal point are likely to be portrayed as unfair. Roemer offers a simple model of this process. Cass R. Sunstein (Chapter 4) examines the idea of irreversibility and its significance in the context of thinking about environmental protection. On one conception, irreversibility concerns the elimination of future options as a by-product of our present actions. Sunstein thinks that this is a sensible concern. In contexts of uncertainty, we should adopt strong precautionary measures while we become more knowledgeable about the effects of our decisions. But it is wrong to think, Sunstein argues, that there is nothing more to the idea of irreversibility. On a different conception, irreversibility refers to losses that are incommensurable in the sense of being qualitatively singular – losses, in other words, that are hard to compute in a cost-benefit calculation. Sunstein makes the case for taking seriously this alternative notion of irreversibility in considering the problem of climate change. Pasquale Pasquino (Chapter 5) offers a new classification of constitutional systems. He challenges the standard typology in the literature, based on the distinction between rigid and flexible constitutions. He suggests that the critical variable in classifying constitutional systems is whether it is possible to carry out a quasi-legal suit against those who violate the constitution. Pasquino’s typology is based on the following dichotomy. On the one hand, there are systems in which the violation of conventions or formal constitutional provisions has no other consequence than a possible popular or political sanction. These systems rest on political norms. On the other hand, there are constitutional systems in which violators can face a quasi-legal sanction. The sanction is not fully legal because, although the breach of the constitution must be declared by a specific agency, such as a constitutional court, we cannot rely on the executive power to enforce sanctions against itself. In these cases, we depend on other (political) agents to carry out the sanction. From the perspective of this framework, there is no difference between a “customary” and a “rigid” written constitution. Rigid constitutions do not establish in themselves an effective hierarchy of norms and effective limits to the power of majorities. Diego Gambetta (Chapter 6) analyzes, in a somewhat Elsterian fashion, the practice of tipping. Whereas tips may be individually perceived as a marginal

xiv

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disbursement of little consequence, collectively considered, in some countries and occupations, tips redistribute large amounts of money and form a sizable percentage of service workers’ income. Most centrally, tipping is an interesting phenomenon per se, and it helps to test behavioral theories. Insofar as tips remain discretionary, they can reveal some of our fundamental behavioral dispositions in a natural setting without recourse to laboratory experiments. Why should we pay more when we can avoid it? Why should some of us refuse a tip? In what way does tipping become a social convention to which we adapt? Using a game-theoretic framework, Gambetta shows that the study of simple human practices can shed light on complex theories with the power to explain human conduct and human interaction in other realms. Julia Maskivker (Chapter 7) addresses the motivations of terrorists. Although all suicide missions have much in common, Maskivker suggests that women may become suicide bombers for gender-specific reasons. Her main claim is that, within certain cultural environments, notions of gender can supply the psychological incentives for women to become suicide bombers. Focusing on the microfoundations of violent activity, Maskivker offers an explanation of female suicide bombings based on the idea of self-redemption. She argues that female suicide killings can be associated with certain deeply rooted emotions that are triggered by the violation of gender norms. This violation produces a desire in the woman to remedy the fault in order to redeem her image and that of her family (especially of her male relatives). The chapter fleshes out the shape and nature of this sociopsychological mechanism, which, according to Maskivker, camouflages personal motives as nationalist liberation or religious fervor. This account contributes to the understanding of an unexplored question in the social sciences, namely, whether there are any gender-based differences in the motivation to act violently. Claus Offe (Chapter 8) analyzes the ideas of precommitment and constitutionalism, especially as they appear in Elster’s work. Offe suggests that the founding of a new constitutional order produces the presumed blessing of collective selfbinding in only a very limited way, and explains why. Adopting a macro-social approach, Offe tests the limits of the Elsterian approach to the study of constitutions based on mechanisms. What effects and consequences (intended or unintended, positive or negative) does a newly created constitution have? Can the effects of a constitution be connected to the particular processes that brought it into existence? Offe concludes that Elster’s work has been directed, somewhat one-sidedly, toward the process through which constitutions are created, thus neglecting the functional side, namely, the accomplishments, consequences, and failures of the new order in the “constitutional reality” of new democracies. Claudio López-Guerra (Chapter 9) examines a practical problem that constitution makers have often had to confront, namely, that of determining the composition of the electorate that ought to vote on the composition of the electorate. Simply put: Who should vote on who should vote? The Nebraska Constitutional Convention of 1919–20, for instance, unanimously proposed to amend the state constitution to give women the right to vote. But whether

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women had to be considered part of “the people” for purposes of ratifying the new document was a matter of great controversy at the convention. In this essay, López-Guerra (i) offers a typology of the problem of second-order enfranchisement, providing examples from several constitution-making processes at the state level in the United States, and (ii) argues for a normative approach for addressing the problem that is different from the one that prevails in the scant literature on the subject. Pablo Kalmanovitz (Chapter 10) examines the duty of states to compensate victims of rights violations in postwar cases. Although it is often argued in transitional justice discourse that states have a duty to compensate for serious violations of human rights and humanitarian law, in war contexts there are several public imperatives that compete for resources with the duty to compensate, including providing basic socioeconomic rights to those in need and reconstructing public goods. Kalmanovitz focuses on three standard accounts of compensation – compensation as preservation of individual autonomy, as protection of individual property rights, and as a necessary component of market institutions – and examines what they may tell us about the balance among compensation, need, and efficiency in circumstances of war and its aftermath. Kalmanovitz argues that the three accounts point to giving far more salience to forward-looking considerations of need and economic growth than is usually done. Methodologically, he challenges the postulation of binding universal standards aimed at controlling policies of postwar reconstruction and favors instead contextualism, emphasizing the significance of variations in the levels of material destructiveness and impoverishment caused by war. The last piece in the volume is a response by Jon Elster (Chapter 12), which we will not try to summarize here. We want to acknowledge the help of all those who contributed in bringing this book to completion. Lewis Bateman, our editor at Cambridge University Press, and Shaun Vigil, Senior Editorial Assistant, provided critical support for the project since the beginning. Two anonymous referees for the Press gave us very generous and useful comments. Finally, without the disposition and patience of all the contributors, none of this would have been possible. To conclude, let us highlight one last sense in which this volume is Elsterian: the list of authors is composed of some of Elster’s friends, colleagues, and former students. We are all indebted to him in various ways. It is possible, and perhaps likely, that the expression of true gratitude is essentially a by-product of actions that do not aim at the expression of gratitude.1 If so, our effort will be in vain. We hope not. Claudio López-Guerra Julia Maskivker

1

See J. Elster, Sour Grapes (Cambridge: Cambridge University Press, 1985), chapter II.

part i JON ELSTER’S SOCIAL AND POLITICAL THOUGHT

1 The Road toward Disillusion Explanations, Predictions, and Prescriptions in the Work of Jon Elster Roberto Gargarella and Félix Ovejero

From his first days in academia until today, there have been important changes in the writings of Jon Elster. These changes have been a constant in his work – take, for example, his early visit to France, where he went to study Hegel’s intricate thoughts with Louis Althusser and ended up writing his dissertation under the supervision of Raymond Aron. Far from his Hegelian beginning, today Elster’s writings have much more in common with Michel de Montaigne’s dictum, according to which, ‘‘there is an infant-school ignorance which precedes knowledge and another doctoral ignorance which comes after it.’’1 Many years of intense study seem to have convinced him that the social sciences have very little to say conclusively about the world: there is much more room for doubts than for certainties. In what follows, we will concentrate our attention on Elster’s process of theoretical evolution and change, which we could describe as part of “a long road toward disillusion.”

on the road It goes without saying that Elster’s capacity for theoretical renewal – a capacity that he reaffirmed again and again throughout his academic life – is perfectly compatible with a firm persistence in some of his philosophical preoccupations and normative viewpoints. There is a clear continuity between his early commitment to socialism and his careful study of Marx – his interest in some of the main Marxian insights (self-realization, alienation, exploitation) – and his later work on local justice, democracy, and political transitions. Moreover, we consistently find an identical intellectual disposition: his normative reflections have never been separated from a concern with the practical, potential implications of his thoughts. Elster has resisted the possibility of transforming social theory into 1

“Of Vain Subtleties” (Book I, chapter 54) in The Complete Essays of Montaigne, 227.

3

4

Roberto Gargarella and Félix Ovejero

mere abstract speculation. He has always been interested in the prospective aspects of his investigations and has maintained his concern for institutional design. Even when he expresses, in a completely honest way, his theoretical doubts about the capacities of the social sciences to provide reliable tools for intervening in reality, he still believes that knowledge matters insofar as it helps us to deal with the external world. In this respect, after all, he seems to subscribe to Marx’s famous XI thesis on Feuerbach. Although at the end of this chapter we will come back to the normative aspects of Elster’s work, in most of what follows we will be describing his gradual disenchantment with the social sciences. We will consider this development – a dialectical development, for sure – which has always followed a similar dynamic: first, Elster explores certain theoretical or methodological proposals from all different angles, then he begins to examine its shortcomings, then he abandons or radically modifies those initial proposals, and finally he moves on to a newer and more promising aspect of his research. Elster’s theoretical attitude manifests a particular intellectual honesty, which has led him to dramatically revise theses to which he seemed to be deeply committed. To state it more graphically, Elster seems to be in an eternal discussion with the Elster that preceded him. The continuity, in any case, has been marked by his methodological approach, related to certain analytical traditions and clear and rigorous thinking.2 Elster’s critical and self-critical attitude has appeared, more notably, in three significant moments of his academic life. The first moment concerns his explorations of the scope and limits of Marxist theory. In this period, Elster first examined Marxism under the lens of the available social theory, philosophy of science, and diverse formal tools. The ambitious aspirations of Marx’s “grand theory of history” were put under strict scrutiny. We find expressions of this work in numerous and diverse writings, including his Logic and Society, Making Sense of Marx, and Explaining Technical Change. The second period appears with his analysis of the scope and limits of the models of rationality that constituted the theoretical core of microeconomics and rational choice. His studies of the topic can be found in books such as Ulysses and the Sirens, Sour Grapes, Solomonic Judgements, and, in a more systematic way, in his Traité de l´homme economique. The third period (which, in part, systematizes the previous two) appears when he declares his distrust of the project of the great social theory (his distrust of the science of law – which finds its more idealized version in Carl Hempel’s Covering Law Model),3 and opts for the study of mechanisms, with the help of material that he takes from the most diverse sources, including 2

3

To state this, at the same time, does not mean that he has a fascination for intellectual novelties, an attitude that can be clearly recognized in his considered approach to rational choice, cognitive sciences, or the use of formalization in social theory (in this respect, his reflections on neurosciences or biology are particularly telling). See, in particular, Elster’s Explaining Social Behavior, 445 467. Hempel, Philosophy of Natural Science, 239.

The Road toward Disillusion

5

history and literature. We can find expressions of this third period in books such as Alchemies of the Mind: Rationality and the Emotions, and Explaining Social Behavior. In all those cases, Elster’s critical approach has been accompanied by the opening of new possibilities for reflection (from the vindication of methodological individualism to the theory of norms and emotions) or the use of mechanisms as explanatory tools.

great expectations The most “optimistic” period in Elster’s academic life appears at the beginning of his work, when he was mainly attracted to the writings of Karl Marx and tried to provide better foundations for his socialist convictions.4 This optimism, of course, did not imply naïveté, but quite the contrary. From the very beginning, Elster approached Marx with a nondogmatic and informed view, similar to the one that would distinguish his approach to other authors and topics. Elster did not want to use his research to reinvigorate standard, more classical views about Marx. By contrast, he tried to examine Marx’s main theses with a fresh, unprejudiced, challenging spirit: at every step, he questioned why one had to expect the particular social evolution that Marx had predicted, what reasons supported the idea that history was going to advance in a certain way, and what motivations would drive individuals to gather or to react as expected. Elster’s long manuscript on the topic became his doctoral dissertation, and only after long and substantive revisions was it published in 1985 under the title Making Sense of Marx – a book that provoked an enormous debate and attracted numerous criticisms.5 In a majority of cases, the substantive revisions that he introduced to his initial manuscript came after discussions he had with the “September Group,” the group of analytical Marxists that he helped to create.6 The group gathered every year, at one point in September, to discuss Marxian topics from a nondogmatic or merely exegetic perspective (this is why one of the founders of the group defined it as the “non-bullshit-Marxism group”). Elster’s many years as a member of the September Group had profound consequences on his relation to Marxism. After that period, he found it difficult to maintain many of the beliefs he had been subscribing to for so many years. As he put it in his An Introduction to Karl Marx, after all his work on the topic, he came to the conclusion that significant parts of the theory he had previously defended were defunct. These parts included scientific socialism (“there is no 4

5

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Even before then, he showed particular interest in understanding Friedrich Hegel’s dialectic. See Elster, Raison et raisons. Some critics replied to his work by referring to it as “How to Make No Sense of Marx,” and wondering what was left of Marx, after Making Sense of Marx. See, e.g., Mandel, “How to Make No Sense of Marx,” and Walzer, “What’s Left of Marx?” The group included academics such as Gerald A. Cohen, Joshua Cohen, Adam Przeworski, John Roemer, and Philippe van Parijs, among many others.

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way in which a political theory can dispense with values and rely instead on the laws of history operating with iron necessity” [189]), dialectic materialism (“No Marxist philosopher has offered any useful insights on the problems of philosophical materialism, such as the mind-body problem, the sense-data problem, and the like” [190]), teleology and functionalism (“teleology explains everything by backward connections, from the ends to be realized to the means that realize it, whereas science proceeds by forward connections from cause to effect” [190]), Marxian economic theory (and particularly, “the theory of labor,” which is “intellectually bankrupt” [192]), and the theory of productive forces and relations of production (a point that Elster admits is more controversial, and one that would affect perhaps the most important part of historical materialism [192]). The (critical) “optimism” that distinguished the beginning of Elster’s work can be found in his general approach to grand, ambitious social theories. Elster expressed this optimism in two classical domains, typical of the Marxist tradition. The first, which was also the more ambitious, was related to a renewed evaluation of dialectical history and, to a lesser degree, of structuralism. These two approaches were undoubtedly very different in their details, but at the same time they had something very important in common, namely the aspiration to obtain a macro-social theory with which to understand social changes. In both cases, the dynamics of changes were understood to be independent of what individuals did or what their motivations were. Elster used analytical tools, nonstandard logic, and statistical theories, among other instruments, in order to explore the old dialectic aspiration of finding “general laws” capable of explaining social evolution. The second domain is the domain of social theory, and in particular the theory of history – or, more generally, theories of social changes. Elster had a special interest in the study of technical change, a topic that, for Marxist theory, resided at the very core of its views about social change. In effect, and according to Marxism, social change was clearly related to the persistent contradiction that appeared between productive forces and relations of production.7

the subversion of rationality The second important period in Elster’s work has, at its center, the theory of rational choice.8 If one could not expect much from holistic proposals, perhaps he could deposit his confidence in theories based on the assumption of homo economicus.9 These views were typical among those interested in economic 7 8 9

Elster, Explaining Technical Change. Elster and Hylland, Foundations of Social Choice Theory. By homo economicus, we mean to say the assumption of an individual that is both rational and selfish, who carefully compares the different available options, before he or she acts, and finally chooses the alternative that maximizes his or her well being.

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theory, and microeconomics in particular – disciplines which, by that time, had begun to export their explicative strategies to other realms of social research. Now, Elster already knew a good deal about social theory so as to simply take for granted the numerous simplifications incurred by economists (it should be noted that some of the best of these economists were his contemporary colleagues at the University of Chicago). Many economists did not seem to be concerned with the apparent unreality of their psychological assumptions (i.e., the idea that individuals were rationalist, hyper-selfish calculators). Following Milton Friedman,10 they claimed there was no need for worry in this respect, for the predictions they made from those assumptions came in line with the world that they observed. Their strategy was undoubtedly controversial, particularly if we take into account that their explanations were, in many cases, simple retrodictions, this is to say, ex post explanations of events that had already occurred. In those conditions, a correspondence with reality that is guaranteed from the beginning lacks any theoretical interests. Nowadays, when a good deal of economic research is directed at demonstrating the falsity of the psychological assumptions of traditional economic methods,11 it is refreshing to recall that Elster was a pioneer in pointing to the empirical shortcomings of these models, with an analytical sophistication that was totally unusual within the domain of experimental economics. In sum, once again, Elster was coming back from his explorations with an empty sack: the tools that he employed with confidence in the beginning were shortly thereafter the object of his critical analysis. From being an expert in the tools offered by rational choice theory, he had become an expert in the weaknesses of these same tools. Elster’s first important publication on the topic of rationality was Ulysses and the Sirens. The main goal of the book was to show the limitations affecting the classical models of rationality (sometimes known by the term “instrumental rationality”) that were widely used among economists. Usually, economists assumed in their studies that individuals ordered their preferences according to a utility function, which they always tended to maximize. In a critical approach with this assumption, Elster tried to show, from different perspectives, the limitations confronted by such a view. Among the cases that he examined in Ulysses and the Sirens, one of the most important and interesting, is the one that gives the book its title. It refers to the case when someone sacrifices part of his or her present freedom in order to maximize future freedom.12 The Ulysses described in the book, for example, engages in this kind of “precommitment” when he orders his sailors to tie him to the mast of his ship so as to prevent him

10 11 12

Friedman, “The Methodology of Positive Economics.” Camerer et al., Advances in Behavioral Economics. At play in this case, there seems to be numerous concepts that belong to Jean Paul Sartre’s initial work (the player’s weakness of will, bad faith, anguish) and which find the refinement of the social sciences through Elster’s work. For a more systematic exposition, see Elster “Deception and Self Deception in Stendhal.”

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from changing the planned route should he be seduced by the lure of the Sirens.13 This case allows us to recognize that people can make short-term sacrifices in order to obtain better outcomes in the long run. After Ulysses, Elster’s next important book on the same topic was Sour Grapes, which was more directly aimed at studying irrationality or the subversion of rationality. In this book, Elster focuses his attention on two crucial defects of rationality. The first refers to “states which are essentially by-products” (42–ss), as we can see in the case of spontaneity or, perhaps more clearly, in the case of sleeping: wanting to fall asleep tends to keep one awake. The irrationality that is present in this situation consists of trying to bring about by the states of will that which are essentially by-products. The second important situation examined in the book is the one of “adaptive preferences” (the reduction of cognitive dissonances), which Elster takes from the work of psychologist Leon Festinger. The case has to do with altering one’s preferences in light of the options that are seen as available. In other words, it refers to the fact that people tend to adjust their aspirations to their possibilities. Again, the fable that gives Sour Grapes its title– the tale of the fox and the grapes – provides an excellent illustration of this phenomenon: in this case, the fox maintains that the grapes are sour after realizing it could not reach them. Undoubtedly, notions such as that of “adaptive preferences” seem to have an enormous fertility for the social sciences, as Elster himself recognizes. Adaptive preferences seems a useful notion for the philosophy of explanation, for moral psychology, and, more significantly, for theories of distributive justice. Think, for example, about the situation of overexploited workers who assume that their situation is acceptable, or about the pariah who sees his situation of discrimination with satisfaction.14 These rationality problems come together with many other difficulties, such as counteradaptive preferences (manifested in the proverbs “the forbidden fruit tastes best” and “the grass is always greener on the other side of the fence”) or the better known case of weakness of the will.15 When we take all these quandaries together, the difficulty of maintaining the old, traditional version of rationality, advanced by economists, becomes apparent. In other words, the

13

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The example of Ulysses became particularly important, since then, for thinking about the Constitution as a collective precommitment strategy. See also Elster and Slagstad, Constitu tionalism and Democracy. However, Elster in Ulysses Unbound challenged the parallel that he himself had created. Following a similar view, Nobel Prize winner Amartya Sen stated: “The most blatant forms of inequalities and exploitations survive in the world through making allies out of the deprived and the exploited. The underdog learns to bear the burden so well that he or she overlooks the burden itself. Discontent is replaced by acceptance, hopeless rebellion by conformist quiet, and most relevantly in the present context suffering and anger by cheerful endurance. As people learn to survive to adjust to the existing horrors by sheer necessity of uneventful survival, the horrors look less terrible in the metric of utilities” (Sen, Resources, Values, and Development, 309.) See, e.g., Elster, “Weakness of the Will and the Free rider Problem.”

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most important and successful theory of rationality appeared to be imprecise, if not directly false. This situation, of course, not only affected economic studies, but the social sciences in general. It suffices to recognize the enormous influence acquired by economics in other disciplines. Take, for example, the impact exercised by the economic analysis of law, for instance, in the work of Ronald Coase, or by the public choice theory, particularly after the work of James Buchanan.16

explanations become more complex: social norms and emotions Shortly after Ulysses, Elster made it explicit that the program of rational choice theory – as an omni-comprehensive explanatory apparatus for the social sciences – was bankrupt. This claim was presented, initially, in two books, namely Solomonic Judgements and The Cement of Society, and immediately after, in the volumes that he published in French under the title Traité critique de l´homme économique. In all these works, Elster continued to call our attention to the incapacity of rational choice theory to provide unequivocal guides for action in matters that, in fact, should have been a central part of its explanatory realm. Rational choice, for example, seemed unable to provide us with guidelines for action in situations of uncertainty, where agents are unable to anticipate the future consequences of their actions and lack a reliable method for comparing alternatives. The same goes for many other situations of strategic interaction, where one’s decisions depend a great deal on other people’s decisions. The roots of Elster’s disenchantment with rational choice were twofold. On the one hand, it was a normative disenchantment, given that the theories being examined were unable to tell us what our decision should be when we most needed theories that help us to decide. On the other hand, Elster’s disenchantment was positive, given that the theories neither helped us to describe nor helped us to explain the actual behavior of real-world agents. To a great extent, it was this second dissatisfaction – of empirical nature – that was behind Elster’s next step on this road toward disillusion, the road that took him to the study of norms and emotions. Perhaps, Elster might have said, rationality was unable to explain things that norms or, later on in his approach, emotions could explain. The origin of Elster’s interest in social norms came after a request by the Swedish Association of Employers to write something for them on the Swedish system of collective wage bargaining. From the beginning of his research, Elster realized that the instruments he used to employ seemed incapable of providing him with an explanation of the egalitarian patterns that prevailed within the Swedish labor movement. The egalitarian outcome did not seem to reflect a

16

Coase, “The Nature of the Firm,” and Buchanan (with Brennan), The Reason of Rules.

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simple equilibrium, which conjugated each player’s best choice (taking into account the restrictions posed by the rest of the players’ choices), as advocates of bargaining theory would have expected. Conventional theory aspires to see whether the final results of a simple case of negotiation theory were a balance that translated the best choice of each party in the face of the limitations drawn up by the other negotiators. Here, there seems to be no room for each party’s idea of what is fair. Law and justice were understood as solutions to negotiation problems or social coordination, as agreements that, rather than responding to normative ideals, were the “lesser evil” that each party could achieve without suspending negotiations or, in the Nash Equilibrium, conventions that all parties are willing to respect as long as everyone respects them. Moral norms were just one way of sanctioning those who, while getting their own way, had a negative external impact or who undermined essential public assets, such as trust, that make human interaction much smoother. The operation was anything but an example of finezza, and Elster, who is more concerned with realism than formal sophistication, was among the first to warn that things would not work in that way. For Elster, the case represented an interesting example of the limitations of rational choice’s explanatory capacities. The Swedish example referred him to egalitarian attitudes that seemed to be more connected with past events (social mandates of egalitarian character) than with rational, future expectations (as rational choice theory would claim). It was then that, following advice from Amos Tversky and Fredrik Engelstad, he decided to “add social norms to the repertoire of motivations for behavior.”17 The case for social norms was first presented in his book The Cement of Society, where Elster explored them in a systematic and careful manner. The idea was that social norms could explain numerous conducts that seemed to be more related to past conventions than to individual, future-oriented calculus. In the book, Elster paid particular attention to two specific phenomena affecting rationality, namely brute uncertainty and strategic uncertainty – the first related to uncertainty coming from the difficulty of anticipating future consequences of present actions, and the second related to uncertainty derived from interdependent decision making. However, his views, at the time, seemed more skeptical and pessimistic than ever before. Elster claimed in The Cement of Society, for example, that he could not “offer a positive explanation of norms” and concluded that he did not know “why human beings have a propensity to construct and follow norms, nor how specific norms come into being and change.”18 The subsequent step in this trajectory (which came to expand and complicate even further Elster’s already complex explanation of human behavior) led him to explore the difficult domain of emotions. The study of emotions in recent years

17 18

See Elster, “Going to Chicago,” 22. Elster, The Cement of Society, 125.

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(and particularly since the publication of Damasio’s influential work)19 has become commonplace. However, it was not so common when Elster began his investigations on the topic. Elster’s initial writings on emotions were rather complex and difficult to follow.20 It seemed clear that he was trying to escape from the seduction of reductionist strategies that abounded within contemporary writings on evolutionary psychology. Many authors within this discipline appealed to the idea of “adaptive advantages” with the same lack of rigor with which many rational choice theorists appealed to the notion of selfish calculus. In order to understand social processes, then, one had to take into account these three dimensions – reason, norms, and emotions – and, depending on the context, one had to put emphasis on one or the others. Rationality was no longer the only, the main, or the final explanation, this is to say, the one to which all the others would be finally reduced. Elster, at this point, did not abandon methodological individualism, but he dissociated it from what had appeared to be its inseparable partner: rational choice theory. For many economists, that was actually the case: they tended to see selfish, rational calculations behind any behavior, and, consequently, they tended to appy ad hoc strategies, explaining every act – even the most noble acts – according to quite impossible calculations (such as in the example of immigrants sending money to their relatives, which some economists explained as a way of discouraging the relatives’ immigration, which could reduce their own salaries).21 In sum, things were much more complicated than what they appeared to be. Now, it seemed that even the simplest action – say, someone helping a neighbor – could recognize its final motive in a mere instrumental calculus (“she will help me in the future”), in social norms (“in these cases I am supposed to help my neighbor”), or in emotions (a sudden current of sympathy toward the person on the other side of the fence). Finally, we can find all types of motivations in any number of places, something that Elster’s writings on the early democratic revolutions illustrate quite well. In effect, even in parliaments – this is to say, even in places where, supposedly, reason is sovereign – we find arguments, but also, and at the same time, we find self-interest and emotions.22 The methodological rule that seemed to prevail, at this stage of Elster’s intellectual development, was one claiming for prudence and more prudence: in order to understand social process, it was necessary to resist our impulses to simplify the world before us.

conclusions: from mechanisms to theories of justice The intellectual route so far described seems paradoxical. The trajectory has been impressive in its findings (particularly as a consequence of its numerous 19 20 21 22

See Damasio, Descartes’ Error. See, e.g., Elster, Alchemies of the Mind, Strong Feelings, or even Political Psychology. Elster, Le désintéressement. Elster, “Arguing and Bargaining.”

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subproducts), but its conclusion amounts to a call for intellectual modesty. Along the road, we have explored the way in which Elster revisited the work of classical authors, such as Karl Marx (although we could also mention Tocqueville,23 or even Bourdieu, an author with whom he seemed to have less affinity).24 We have also seen how he criticized, in a powerful and convincing way, theories and concepts that occupied a central place in social theory (such as the theory of rationality), and how he attempted to provide empirical support to normative theories (as in Local Justice). At the end of the road, we find Elster subscribing to a reasonable skepticism about the capacities of social theory. We may expect some partial illuminations from it – see, for example, the fascinating list of problems with which he begins Explaining Social Behavior – but we cannot aspire anymore to find a general theory, capable of fully explaining society and with predictive potential. In this new and more stable stage of his thought, Elster seems far from the researcher who was once interested in broad, general, and ambitious theories. Elster is now dealing with the “nuts and bolts, cogs and wheels” of the social sciences – that is to say, with a toolbox of mechanisms that could be used to explain social phenomena.25 He focuses his attention on causal mechanisms, which he defined as “the basic units of the social sciences.”26 If the search for mechanisms distinguished Elster’s studies at this time, there were at least two other features – then well consolidated – which were also distinctive of his academic work. The first was his devotion to intellectual clarity, which found a particular reflection in his defense of methodological individualism.27 A satisfactory explanation, he would claim, is the one that takes us from actions to outcomes; from interactions between individuals to social states or processes. This individualist concern can be translated as a concern for the 23 24 25

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Elster, Alexis de Tocqueville. Elster, “Snobs.” Again, and as happened before, part of the most advanced studies in contemporary sociology followed Elster’s interest on the subject. See, e.g., Hedström and Bearman, The Oxford Handbook of Analytical Sociology. For more details, see Hedström and Swedberg, Social Mechanisms: An Analytical Approach to Social Theory. Elster, Nuts and Bolts for the Social Sciences, p. vii. Elster’s learning about mechanisms recognizes different sources. In part, the reading of Tocqueville’s work especially The Old Regime and Democracy in America has been a fruitful source of inspiration in this process. He also found numerous insights by reading good literature, from Montaigne to Stendhal, as reflected, for instance, in his Political Psychology. In the end, as he maintained it in the preface of Explaining Social Behavior, “we would be cutting ourselves off from many insights if we ignored the mechanisms suggested by philosophy, fiction, plays, and poetry” (ix). We simply cannot neglect “twenty five centuries of reflection about mind, action, and interaction” (x). By methodological individualism, we mean the idea that any valid social explanation must be capable of being stated in ways that only refers to individuals, their desires and beliefs. Of course, methodological individualism, so understood, has nothing to do with a resistance to recognize the existence or importance of social groups or with the idea that men are selfish, as some people would assume it implies. Methodological individualism comes to help us understand why in certain circumstances, particular individuals act in a certain manner.

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“micro-foundations” of action – a disposition to “open the box” of social facts in order to examine its “nuts and bolts.”28 At the same time, this obstinate, obsessive preoccupation for the micro-foundations can be read as an expression of his strong resistance of holistic and functionalist explanations that have dominated social sciences for so many years. His opposition to functional explanations became particularly evident in his Explaining Technical Change, which he defined as the “high point” in his “crusade” against functionalism.29 The other characteristic feature of Elster’s work was its interdisciplinary character, and his disposition to appeal to the most diverse tools offered by social theory. On the one hand, Elster showed a strong interest in testing the assumptions of certain theories through the empirical findings of other disciplines. Thus, he tested rationality theory with his main findings in the study of psychology, he discouraged the optimism of some theories of democracy by exploring parliamentary history, he confronted principles of justice with the concrete decisions of real-world institutions, and so on. In this exploration, he consulted the findings of sociology, economics, psychology, history, and even literature in order to provide support for his claims. On the other hand, he employed the models offered by certain theories in order to irrupt on the explanatory domains of other theories. This is what happened when he used economic theories in order to have a better understanding of psychology (weakness of the will, myopic behavior), or when he used certain psychological concepts (precommitment, adaptive preferences) to have a better approach to questions of institutional design. At this point, it is worth noting that the minimalist appearance of Elster’s approach to the social sciences does not at all imply an abdication of his interests in or reflections about public affairs. In a good way, his concern with the clarity of arguments, and his disposition to test social theories with the best evidence available, shows his interest in the practical justification of social theory. His theoretical skepticism, in the end, has nothing to do with a normative skepticism. By contrast, his doubts regarding social theory seem to respond to a genuine moral concern: social knowledge has to help us to improve our world. This is what explains his criticisms – even moral criticisms – of researchers who develop a kind of social knowledge that, in the end, seems to be disinterested in the world that surrounds them. This is also what explains his persistent objections to the different forms of postmodernism, in its lack of clarity and its renunciation of objectivity, as well as his rejection of the kind of hyper-formalism that came to characterize part of the social sciences. For example, he criticizes equilibrium theorists who “do not believe their models have anything to say about the real

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See Elster, Nuts and Bolts for the Social Sciences. As Elster puts it, a functionalist explanation would be the one that assumed that if a behavioral pattern or an institution produces an outcome that is good for someone or something, that fact would also explain the existence of that pattern or institution.

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world,”30 and at the same time he declares his admiration of thinkers such as Thomas Schelling, who developed modest and ingenious models that proved fruitful in areas as diverse as the study of climate change, military strategy, the understanding of terrorism, and the theory of conflict and bargaining (Elster used to say, during his classes, that the Nobel Prize in Economics should be awarded to the author of Strategy of Conflict, a prediction that came true in 2005).31 In contrast with the pathologies of a social theory that seemed, sometimes, pretentious and useless, Elster’s work is a testimony to the practical, even though modest or minimalist, possibilities of social science. Following are two interesting examples of the case. (i) Constitutional Assemblies. Perhaps the best illustration of this interaction can be found in Elster’s long work on constitutional assemblies – particularly, in his study of eighteenth-century constitutional debates in Philadelphia and in Paris. Undoubtedly, the study of these constitutional debates helped Elster to put together many of his previous intellectual concerns. As we already know, constitutional assemblies represent a wonderful demonstration of how arguments, interests, social norms, and passions come together. Moreover, the study of constitutional conventions has allowed Elster to find numerous mechanisms in action, as well as wonderful illustrations of the “nuts and bolts” that he had already identified. Think, for example, about “the civilizing force of hypocrisy”32 (the idea that publicity forces assembly members to speak in a non-selfinterested way), cases of hyperrationality (the tendency for reason to go beyond its limits), and self-binding, adaptive preferences. The fact that constitutional assemblies occupied such a central place in Elster’s more recent research came as no surprise. The subject seemed not only exceptionally inspiring, but also particularly exciting for him, given his perennial interest in issues of institutional design.33 In fact, his study of constitutional assemblies represented a great way to combine his theoretical concerns with his political interests. This is also why he was so shocked with the events that took place in Eastern Europe by fall 1989.34 As he once put it, “I knew I was probably 30

31

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In the same paragraph, he praises “one of the most prominent journal in economics, Econometrica,” for imposing “a moratorium on social choice theory” when the theories became “so mathematically convoluted and so obviously irrelevant to the study of actual politics.” Explaining Technical Change, 461. It is worth noting the number of Nobel Prize winners who worked with Elster before receiving their award. See, e.g., the list of collaborators in his edited book Foundations of Social Choice Theory. Elster, “Deliberation and Constitution making,” 111. This has been so, even when he is presently more aware than ever before about the dangers of social engineering and the perils of hyperrationality. See, e.g., Elster, “The Possibility of Rational Politics.” As a consequence of these events, he decided together with his colleagues Stephen Holmes and Cass Sunstein, from the University of Chicago to start up a new Center for the Study of Constitutionalism in Eastern Europe. The center specialized in the gathering of documentation

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witnessing the most important political events that would take place in my lifetime.”35 (ii) From Theories of Democracy to Theories of Justice. In addition to highlighting his interest in institutional reform, Elster’s work has contributed to the refinement of normative theory, particularly – but not only – through the strengthening of its empirical foundations. By doing so, he has helped it to escape from a major risk, namely that of falling in mere scholasticism – the creation of a world of taxonomies and principled solutions that lacked any contact with reality. Like Amartya Sen, Elster has tried to show us that social theory can provide help to normative theory: in the end, we want normative theory to be not only logically consistent, but also empirically plausible. Many of the suggestions that we explored in previous pages can be useful, in this respect, but we will now focus our attention on one particularly relevant example related to the idea of autonomous preferences. We all assume that an necessary requirement for living in a just society is that people adopt their decisions in autonomous ways. This is why it is so important to recognize the numerous factors that may affect the rationality of our decisions, and which the work of our author has helped us to identify. Once we recognize the presence of these factors (i.e., from weakness of the will to adaptive preferences), we need to ask some significant questions, including the following: What is it possible to do in order to “launder” our preferences? What institutional mechanisms can help us reduce the “distortions” that affect our rationality? And, more significantly, what implications may these changes have, regarding how we conceive of democracy? In his concern with these types of questions, Elster has been thinking about democracy as a “deliberative” system, where the preferences of the individuals are not merely taken as a given but rather are subject to a process of critical collective scrutiny. Again, the idea is not that a particular institutional system will be able to guarantee rational political decisions, but that it could contribute to reduce the burden of some defects of rationality.36 At the same time, notions such as those of adaptive preferences may play a crucial role when outlining a theory of distributive justice. For example, it seems clear that those who live in situations of misery or extreme poverty or necessity face obvious difficulties with forming autonomous preferences, with becoming responsible for their own destiny, and with responding to most institutional incentives.

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about constitutional, legal, and political developments in the ex Communist countries and the study of the new constitution making processes that were then launched. Elster himself had the chance to take part in some of these new constitutional debates, which he then reflected on in a few important books. See, e.g., Elster et al., Institutional Design in Post Communist Societies, and Elster, The Roundtable Talks and the Breakdown of Communism and Closing the Books: Transitional Justice in Historical Perspective. Elster, “Going to Chicago,” 20. See, e.g., Elster, “The Market and the Forum,” and Elster, ed., Deliberative Democracy.

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Undoubtedly, such information should be of fundamental importance to theorists such as John Rawls and Ronald Dworkin, who have been thinking about theories of justice. Authors like these have been interested in distinguishing between the “circumstances” within which a person lives (circumstances that are not of his or her choice, and for which the person is not responsible), and the “choices” that this person makes. They assume that an individual should not be “punished” or “rewarded” by the institutional system for reasons that are beyond the person’s control. Now, in the face of those theories of justice, Elster’s research could be of significant help. Before making someone responsible for his or her choices, we should have a clearer idea about what making an autonomous choice could mean. If not, we would be penalizing those who lack the capacity to form and carry out their own life plans. In writings such as Local Justice, Elster has been trying to mediate between Rawls’ and Dworkin’s theories of justice, favoring an alternative view, which he called the “commonsense” conception of justice. This view would neither assume, as Dworkin does, that all people are able to form and follow long-term life projects nor, as Rawls does, that all preferences are morally arbitrary (which would make it difficult to justify democracy, and particularly our voting rights).37 In sum, at the end of the road we find Elster working with the nuts and bolts of the social sciences, but at the same time prepared to use those small and medium-sized causal mechanisms in order to continue thinking about, explaining, and evaluating political phenomena. In this last epoch, Elster does not believe in grand theories, is extremely skeptical about ambitious plans of social engineering, distrusts rationality theories, seems disillusioned with the predictive power of social theory, and believes that the social sciences, in general, are in a profound state of crisis, which he describes as a state of obscurantism.38 Perhaps, finally, Elster has being following the same road as the other Ulysses – the one who appears in “Ithaca,” the poem by Constantine Cavafy: Ithaca has given you the beautiful voyage. Without her you would have never set out on the road. She has nothing more to give you. And if you find her poor, Ithaca has not deceived you. Wise as you have become, with so much experience, you must already have understood what Ithacas mean.39

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As he put it in his book Local Justice: “To tell a citizen that he is entitled to welfare because he is not responsible for his preferences is pragmatically incoherent. One cannot at one and the same time treat the preferences of an individual as a handicap that justifies compensation, and treat them as a legitimate input to the political process” (239). And also: “In a democratic society . . . a policy must be rejected if it cannot coherently be explained to the individuals in question” (239). See Elster, “The Crisis of the Social Sciences.” Cavafy, “Ithaca” in Collected Poems.

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References Buchanan, James, and G. Brennan. 1985. The Reason of Rules. Cambridge: Cambridge University Press. Camerer, Colin, George Loewenstein, and Matthew Rabin, eds. 2004. Advances in Behavioral Economics. Princeton: Princeton University Press. Cavafy, Constantine. 1911. “Ithaca.” In C. P. Cavafy, Collected Poems, translated by Edmund Keeley and Philip Sherrard, edited by George Savidis. Revised Edition. Princeton: Princeton University Press. Coase, Ronald. 1937. “The Nature of the Firm.” Economica 4, no. 16: 386 405. Damasio, Antonio. 1994. Descartes’ Error: Emotion, Reason, and the Human Brain. New York: Putnam. Elster, Jon. 1981. “Snobs.” Review of Pierre Bourdieu 1979. La Distinction. London Review of Books 3, no. 20 (November 5, 1981): 10 12. Elster, Jon. 1983. Explaining Technical Change. Cambridge: Cambridge University Press. Elster, Jon. 1985a. Making Sense of Marx. Cambridge: Cambridge University Press. Elster, Jon. 1985b. Sour Grapes. Cambridge: Cambridge University Press. Elster, Jon. 1985c. Ulysses and the Sirens. Cambridge: Cambridge University Press. Elster, Jon. 1985d. “Weakness of the Will and the Free Rider Problem.” Economics and Philosophy 1: 231 265. Elster, Jon. 1986. An Introduction to Karl Marx. Cambridge: Cambridge University Press. Elster, Jon, ed. 1987a. “Deception and Self Deception in Stendhal: Some Sartrean Themes.” In The Multiple Self. Cambridge: Cambridge University Press. Elster, Jon. 1987b. “The Possibility of Rational Politics.” In Archives Européenes de Sociologie, vol. XXVIII. Elster, Jon. 1989a. The Cement of Society. Cambridge: Cambridge University Press. Elster, Jon, ed. 1989b. “The Market and the Forum.” In Foundations of Social Choice Theory, Cambridge: Cambridge University Press. Elster, Jon. 1989c. Nuts and Bolts for the Social Sciences. Cambridge: Cambridge University Press. Elster, Jon. 1989d. Solomonic Judgements. Cambridge: Cambridge University Press. Elster, Jon. 1993a. Local Justice. New York: Russell Sage. Elster, Jon. 1993b. Political Psychology. Cambridge: Cambridge University Press. Elster, Jon. 1994. “Arguing and Bargaining in the Federal Convention and the Assemblee Constituante.” Revue Française de Science Politique 44: 187 256. Elster, Jon. 1995. “Going to Chicago.” Manuscript, reproduced in J. Elster, Egonomics. Buenos Aires: Gedisa (1997). Elster, Jon, ed. 1996a. The Roundtable Talks and the Breakdown of Communism. Chicago: University of Chicago Press. Elster, Jon. 1996b. Strong Feelings. Cambridge, MA: The MIT Press. Elster, Jon, ed. 1998a. “Deliberation and Constitution Making.” In Deliberative Democracy. Cambridge: Cambridge University Press. Elster, Jon, ed. 1998b. Deliberative Democracy. Cambridge: Cambridge University Press. Elster, Jon. 1999. Alchemies of the Mind: Rationality and the Emotions. Cambridge: Cambridge University Press. Elster, Jon. 2000. Ulysses Unbound. Cambridge: Cambridge University Press.

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Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. Cambridge: Cambridge University Press. Elster, Jon. 2006. Raison et raisons. Paris: Collège de France/Fayard. Elster, Jon. 2007. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences. New York: Cambridge University Press. Elster, Jon. 2009a. Alexis de Tocqueville: The First Social Scientist. Cambridge: Cambridge University Press. Elster, Jon. 2009b. Le désintéressement. Traté critique d l´homme économique, vol. I, Paris: Le Seuil. Elster, Jon. 2010. “The Crisis of the Social Sciences.” Manuscript presented at the University Di Tella, on the occasion of receiving a doctorate honoris causae. Elster, Jon, and Aanund Hylland, eds. 1989. Foundations of Social Choice Theory. Cambridge: Cambridge University Press. Elster, Jon, Claus Offe, and Ulrich Preuss, eds. 1998. Institutional Design in Post Communist Societies. Cambridge: Cambridge University Press. Elster, Jon, and Rune Slagstad, eds. 1993. Constitutionalism and Democracy. Cambridge: Cambridge University Press. Friedman, Milton. 1953. “The Methodology of Positive Economics.” In Essays in Positive Economics. Chicago: University of Chicago Press, 3 43. Hedström, Peter, and Peter Bearman, eds. 2009. The Oxford Handbook of Analytical Sociology. Oxford: Oxford University Press. Hedström, Peter, and Richard Swedberg, eds. 1998. Social Mechanisms: An Analytical Approach to Social Theory. Cambridge: Cambridge University Press. Hempel, Carl. 1966. Philosophy of Natural Science, Englewood Cliffs, NJ: Prentice Hall. Mandel, Ernest. 1989. “How to Make No Sense of Marx.” In R. Ware and K. Nielsen, eds. Analyzing Marxism. New Essays on Analytical Marxism, Canadian Journal of Philosophy, Supp. vol. 15, Calgary: The University of Calgary Press, 105 132. Montaigne, Michel de. 1958. The Complete Essays of Montaigne, translated by Donald M. Frame. Stanford, CA: Stanford University Press. Sen, Amartya. 1984. Resources, Values, and Development. Oxford: Blackwell Publishers. Walzer, Michael. 1985. “What’s Left of Marx,” The New York Review of Books (November 21, 1985).

part ii RATIONALITY AND COLLECTIVE ACTION

2 Why It’s Rational to Vote Gerry Mackie*

1. introduction What a thrill it was for me at mid-life to head off from timbered southwest Oregon to snow-swept University of Chicago, where I hoped to study political theory and critical rational-choice theory with Jon Elster. The rational-choice argument that voting is instrumentally irrational had earlier changed my mind about voting, but not my feelings. Like several of my fellow students, in a vain and supercilious gesture, I stopped voting. But come election time, strong pangs of remorse about abstention would pelt me, although I kept them to myself. Elster’s introduction to his widely assigned anthology on rational choice noted that a major failure of the theory was that it failed to explain the fact of wide voter turnout.1 Reflecting on the blinkered arrogance of Marxism, psychoanalysis, and functionalism, I decided that theory was likely more at fault than fact. My Democracy Defended rebutted a prominent antidemocratic school of rational choice theory, and in so doing assuaged the (Condorcet) paradox of voting.2 One critic, Saul Levmore, Dean of the University of Chicago Law School, observed that democracy is still suspect, because of the paradox of nonvoting.3 I accepted the challenge and thought through the first version of this essay. A considerable time after I wrote and presented it, I discovered that

* Thanks to the students in my Fall 2006 graduate seminar on conceptual and normative problems of voting, including Molly Hamilton for creating diagrams; James Fowler; Brown University, Political Philosophy Workshop, February 16, 2007; Columbia University, Political Science Department, American Politics Workshop, February 19, 2007; Harvard University, Harvard Political Theory Colloquium, February 22, 2007; University of California, San Diego, Political Theory Colloquium, May 24, 2007; and Trinity College, Dublin, School Seminar, February 24, 2010. I am wholly responsible for the contents. 1 Elster, Rational Choice. 2 Mackie, Democracy Defended. 3 Levmore, “Public Choice Defended.”

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Gerry Mackie

Elster was ahead of me, explaining in a footnote at page 217 of Explaining Social Behavior that “[t]he paradox arises when the sole aim of the voters is to put a candidate into office or a proposal into effect. It need not arise when the aim is to contribute to the vitality of the democratic system or to give a ‘mandate’ to a candidate, since in these cases votes matter even if they are not pivotal.”4 Thus, I present this essay, in Elster’s honor.

2. the paradox of nonvoting The paradox of nonvoting – the idea that a single vote has no effect on the outcome – seems to imply that the individual act of voting is instrumentally irrational, or is at best merely an expression of preference, and at that undisciplined by proper constraints. Here, I seek to challenge the view that the individual act of voting is necessarily irrational, to argue that voting is possibly rational, to hypothesize that it is rational for many individuals in many circumstances, and to outline what we would observe of voting if the account of motivation I propose were to be largely correct. I acknowledge that voter motivations are heterogeneous, that voter turnout (a different question) is influenced by a wide variety of circumstances and effects, and that both require ongoing empirical investigations. This essay is a conceptual analysis of one aspect of the question. The paradox of nonvoting was first stated by Downs,5 and is often formulated as follows. B is the individual’s Benefit from a winning election outcome, C is the Cost of the individual voting, and p is the probability that an individual’s vote is pivotal in causing the winning election outcome. An individual would vote, then, when pB − C > 0. The probability of being pivotal, however, is minuscule, effectively zero; for any individual, the act of voting is all cost and almost no benefit, and hence no one should vote. But a large majority of democratic citizens across the world do vote. Riker and Ordeshook proposed that since citizens do vote, some other value motivates them, call it Duty.6 The revised formula reads: pB − C + D > 0. Dowding deftly categorizes the bewildering array of responses to this problem. (1) Admit that rational choice theory cannot explain why people go to the polls, but hold that considerations of probability, benefit, and cost can explain at the margin why they vote the way they do. (2) Insist that the cost of voting, the C term, is zero. (3) Make the B term huge, benefit to all society rather than just to the narrow interests of the individual voter. (4) Suggest that people vastly overestimate the p term (or, I would add, that scholars previously have badly underestimated p), or hold that pivotality is not the relevant consideration. (5) Say that people understand voting as a (nonconsequentialist) duty, or intrinsically value 4 5 6

Elster, Explaining Social Behavior, 217. Downs, An Economic Theory of Democracy, 244 246. Riker and Ordeshook, “A Theory of the Calculus of Voting.”

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the mere expression of their preferences: pB − C + D + E > 0. (It is more general and more precise to term these, after Cox 1999, act-contingent utilities.)7 The expressive theory of voting is probably the modally endorsed model these days.8 It holds that there is no causal connection between an individual’s vote and the associated electoral outcome, that expressive considerations disproportionately influence the ballot in comparison to the market, and that a divergence between individuals’ expressive preferences and their instrumental preferences can perversely distort the aggregate outcome. It appeals to some because it does not traffic in illusions about pivotality. It appeals to others because “the veil of insignificance” (minuscule p) zeroes out self-interest and liberates the expressive, perhaps the ethical, voter,9 her expressive preferences well informed by public deliberation over the common good. It appeals to yet others in suggesting that democratic choice is necessarily of inferior quality to market choice. However, as I shall detail, voters say they intend to influence the outcome and act as if they so intend. They have a decidedly instrumental attitude. A promising fix among the many available is the altruistic theory of voting.10 These authors report that the chance of pivotality, although tiny, has been underestimated and is roughly of the order of 1/n, where n is the number of voters. They also assume that the voter is motivated to achieve benefit for both self and society. Label the number of citizens N, and one’s discounting of benefit to another individual α (0 < α < 1), and a citizen will vote when p(Bself + αNBsociety) − C > 0. The term for benefit to self, Bself , is small compared to the term for benefit to society, Bsociety, and, when each is multiplied by the chance of pivotality, benefit to self goes to almost nothing, leaving benefit to society as the principal motivation for voting. If so, then, just as public deliberation may operate as a filter to exclude unjustifiable preferences, voting may operate as a filter to exclude self-interest and include public interest as input to collective decisions. The essay begins with an examination of evidence about the proposition that voters do value the public good. They do, at least as much as their self-interest, and probably more so; thus, something resembling the altruistic model is appropriate. The paradox literature, however, including the altruistic model, is premised on the applicability of the pivotality criterion. Pivotality assumes that voters value only winning, not the size of the minority or majority vote for one’s issue. Worse, pivotality leads to an unacceptable conclusion. If 51 vote for and 50 against an issue, then each of the voters is pivotal and causes the outcome. If 52 vote for and 49 against, then none of the voters on the winning side is pivotal, and none causes the outcome. Who caused the outcome, then? The analysis of overdetermined causation resolves this problem. Next, many voters value more than winning; they also value how much their side wins by. If so, then each voter 7 8 9 10

Dowding, “Is It Rational to Vote?” Brennan and Lomasky, Democracy and Decision. Goodin and Roberts, “The Ethical Voter.” Edlin et al., “Voting as a Rational Choice.”

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is pivotal to the outcome. The paradoxicalist’s objection now becomes that each citizen’s vote is imperceptible. I argue that imperceptibility of harm or benefit does not mean absence of harm or benefit. Then, in an aside, I propose that voters may be motivated not only to advance the decision on a particular issue, but also to advance democratic accountability and stability. People do value the public good, but are they willing to contribute to its advancement? Olson’s logic of collective action says that it is necessarily irrational for them to do so. This is a theoretical claim, not an empirical claim: the circumstances of the competitive market seem to require the inference that firms objectively possess the ranking of preferences that Olson imputes, a thick theory of rationality. Individual humans are not necessarily so constrained, and we must look empirically at their subjective preferences, a thin theory of rationality. There is nothing irrational about an individual choosing to contribute to a public good, and I report evidence that they regularly do so in low-cost public goods resembling voting. Then I report evidence that voters are in fact often motivated by duty and by intention to influence the outcome, contrary to the predictions of the paradox of nonvoting. I argue that the two most coherent models of voter motivation are the pivotal-altruistic and the contributory, and I suggest observations that would distinguish between the two. I also apply the contributory account against the view that voters are necessarily in a state of rational ignorance. Finally, I propose that expected utility theory applies properly when we understand that the voter’s choice is not between one alternative or another, but rather between contributing to the advancement of one alternative over another. The argument can be almost entirely summarized with a simple example. Suppose, reasonably, that one likes playing basketball for the sake of winning, winning by the largest margin, and losing by the smallest margin. The paradox, however, insists that only winning counts, and thus it would be irrational to play on the team if one expects to lose or to win by more than one point.11 Past responses to the paradox say: Who cares about the score? It’s just one’s duty to play, or one expresses oneself in play, or one is paid to play. Or, it’s stupid to play.12

3. do voters value the public good? A person would be rationally motivated to vote if she believed that she is contributing to achievement of a great public good or avoidance of a great public bad.13 Advancing the public good happens to advance the private

11

12

13

The altruistic pivotal model of Edlin et al. (2007) more plausibly allows some uncertainty about whether one would win. An economist would “be embarrassed to be seen at the voting booth,” say freakonomists Dubner and Levitt (2005). Compare Barry, Sociologists, Economists, and Democracy; Caplan, “Libertarianism against Economism”; Edlin et al., “Voting as a Rational Choice”; and Parfit, Reasons and Persons, 74 75.

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interests of many citizens as well. A person also may be rationally motivated to vote in order to avoid a calamitous private bad, such as public policies she believes would put her at risk of misery or death. The initial success of the homo economicus approach in explaining market interactions, and the attractive simplicity of its models, helped inspire the analogy of consumer choice to voter choice. As a result, an important portion of the professional audience believes that citizens vote their self-interest. Therefore, I must establish that the weight of evidence is to the contrary. In older studies, aggregate data showed that voters turned against incumbents when the economy was bad, apparently supporting the pocketbook model of voting. Kinder and Kiewiet were able to look at individual rather than aggregate data.14 Analysis of individual data showed little relationship between an individual’s personal economic grievances, the pocketbook variable, and her assessment of the nation’s economic health, the pro-social variable. Moreover, it showed that personal economic grievances had little or nothing to do with preferences for congressional or presidential candidates, but that assessment of national conditions is correlated with political preferences. Sears and Funk carried out some of their own studies and summarized the literature in an influential review.15 They say that in their work, self-interest variables account for on average 4 percent of variation in regressions, a minor explanatory contribution. See Citrin and Green, and Lewin for similar summaries.16 With respect to the pro-social voting identified by Kinder and Kiewiet, Funk and Garcia-Monet17 investigated through analysis of the American National Election Survey the objection that self-interest could operate indirectly through perceptions of national economic conditions to influence political preferences. They find quite a modest contribution from an indirect effect, and that the total direct and indirect effect of self-interest is low. In further work, Funk finds a dual influence of self-interest and societal interest in public opinion.18 Chong, Citrin, and Conley find that pro-social priming weakens but does not eliminate selfinterest when personal stakes are clear, and that people with low stakes in an issue respond strongly to pro-social priming.19 See also Brodsky and Thompson and Shabman and Stephenson for studies of one-issue local elections where it is shown that many citizens voted for a public good contrary to their objective material self-interest.20 From five observations about American voting behavior, 14 15 16

17

18 19 20

Citrin Kinder and Kiewiet, “Sociotropic Politics.” Sears and Funk, “The Limited Effect of Self Interest on the Political Attitudes of the Mass Public.” See Cintrin and Green, “The Self Interest Motive in American Public Opinion”; Lewin, Self Interest and Public Interest in Western Politics. Funk and Garcia Monet, “The Relationship between Personal and National Concerns in Public Perceptions about the Economy.” Funk, “The Dual Interest of Self Interest and Societal Interest in Public Opinion.” Chong et al., “When Self Interest Matters.” Brodsky and Thompson, “Ethos, Public Choice, and Referendum Voting”; Shabman and Stephenson, “A Critique of the Self Interested Voter Model.”

Gerry Mackie

26 table 2.1 Self-Reported Reasons to Vote Reasons People Give Us for Voting Direct Instrumental Chance to make community or nation a better place to live Chance to influence public policy Further party goals Get help from official on family problem Moral My duty as a vitizen Do my share Indirect Instrumental Recognition from people I respect Didn’t want to say no to someone who asked Intrinsic Exciting to vote

% Not Very % Somewhat % Very Important Important Important 3

14

83

10 35 79

26 30 14

65 35 8

4 14

18 41

78 45

71 88

18 9

11 3

63

23

14

Source: American Citizen Participation Study, 1990.

Jankowski infers that the best explanation is some altruism on the part of voters.21 In an analysis of the 1995 National Election Survey Pilot Study, Jankowski finds that agreement with a statement that these days people are not kind enough to others is significantly related to voter turnout.22 Fowler shows that people who care for others are more likely to vote.23 This is not the place to review all voting surveys, but the American Citizen Participation Study asked an instructive series of questions about citizens’ motivations to vote (see Table 2.1). Pro-social motivation dominates: half the respondents say that at least one particular problem motivated them to vote; and for 9 percent of them myself, family, or others were affected by the problem; for 46 percent, all the community was affected; and for 45 percent, all the nation was affected. Most intend to influence the outcome: 97 percent say the chance to make the community or nation a better place to live is somewhat or very important, 91 percent say the chance to influence public policy is somewhat or very important, 65 percent say that furtherance of party goals is somewhat or very important, 22 percent say that getting help from an official on a family problem is somewhat or very important. Most are morally motivated to vote: 96 percent say that my duty as a citizen is somewhat or very important, 86 percent that to do my share is somewhat or very important. Side payments for voting are not very important: 71 percent say so about obtaining recognition 21 22 23

Jankowski, “Buying a Lottery Ticket to Help the Poor.” Jankowski, “Altruism and the Decision to Vote.” Fowler, “Altruism and Turnout.”

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from people I respect, 88 percent about not wanting to say no to someone who asked. Finally, few vote because they find it exciting to do so. A standard objection is that when respondents express pro-social motivations, they are merely seeking approval from researchers. Miller and coworkers establish in a series of experiments that their American subjects are captive to a social norm of self-interest, fearful of disapproval for revealing pro-social sentiments.24 Given this powerful norm, it is likely that respondents conceal prosocial motivations in order to seek approval from researchers. The tiebreaker is that a variety of research strategies carried out by a variety of scholars over a long period of time converge on the judgment that voters are primarily pro-social in orientation. One must be careful to disentangle public interest from self-interest in the study of voting over public decisions. For the liberal democrat, the public good is the life, liberty, and legitimate interests of individual citizens. Often a claim that some purportedly public interest outweighs private interests is mistaken. If a public good is a social dilemma, then choosing the pareto-superior option on the condition that others do so as well is both a public-interested and a self-interested action. Wanting a justifiably more fair distribution of some good that would happen to benefit its advocate, say health security, could be both publicinterested and self-interested. The aggrieved taxpayer voting for a tax limitation measure is voting to relieve all those similarly situated of the tax burden. Rawls ascribes two moral powers to the person, a capacity for a conception of the good, to pursue one’s rational advantage, and a capacity for a sense of justice, to act from a public conception of justice, which characterizes the fair terms of social cooperation.25 Whatever the formulation, I do not see how we can understand and explain politics without reference to both interest and morality. Public choice theory aptly criticizes the view of welfare economics that humans are egoistic as economic actors but, without explanation, benevolent as political actors. At the same time, economic thought accepts wide heterogeneity in tastes, but denies heterogeneity in moral dispositions. Indeed, it assumes that genuine moral motivation is absent in humans. Brennan and Hamlin thread the needle: assume that humans are strongly interested, but that moral motivation varies among individuals.26 This is closer to life. It preserves motivational neutrality yet allows for behavioral variation across institutions. Different institutional settings, through incentives, not exhortation, encourage or discourage one capacity or the other. Camerer and Fehr provide some striking illustrations of how institutional incentives could motivate other-regarding actors to mimic self-regarding actors, as in market exchange, or self-regarding actors to mimic other-regarding actors, as in resolution of a social dilemma.27 24 25 26 27

Miller, “The Norm of Self Interest.” Rawls, Political Liberalism, 19. Brennan and Hamlin, Democratic Devices and Desires. Camerer and Fehr, “When Does ‘Economic Man’ Dominate Social Behavior?”

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It is fair to conclude that generally, in their votes, citizens value the public interest at least as much as they do their own private interest, and probably more so. If market transaction is primarily pocketbook, secondarily it is pro-social, sometimes intended as in buying fair-trade coffee or boycotting Hummers, and sometimes unintended as in the good consequences of the price system. If casting a vote is primarily pro-social, secondarily it is sometimes pocketbook, especially when public and private interests are believed to point in the same direction.

4. is a vote irrational if it is redundant?

Value to Voter

The claim that voting is irrational often confounds two logically independent claims: redundancy and imperceptibility. The first claim assumes, usually tacitly, that the voter cares only about whether her candidate or proposal wins or loses, and not at all about losing by the smallest margin or winning by a large margin. Say that the election is by simple majority rule between two candidates. The voter’s utility over the outcome is a step function: zero value for any vote tally less than the bare majority, some positive value for winning by a bare majority, but no additional value for winning by more than a bare majority. Call this the winning value of voting. See Figure 2.1. The first claim is that voting is irrational unless one’s vote is pivotal to the outcome. The chance of being pivotal in any mass election is next to nothing; indeed, given normal circumstances and uncertainties, one couldn’t expect to be pivotal even in elections with only a few dozen voters. Suppose that all that matters is pushing a Volkswagen out of a ditch, there are eleven people around, and it takes a minimum of six to push it out. If five people push, none is pivotal, each contributes to the effort, and the effort is unsuccessful. If six people push, each is pivotal, each is contributory, and the effort is

0

.5 Vote Share of Favored Candidate

figure 2.1 Voting: only value voting

1

Why It’s Rational to Vote

29

successful. If seven people push, none is pivotal, each is contributory, but the effort is successful. The pivotalist insists that when seven push, none has a causal effect on the outcome. What caused the outcome, then? This is a problem of overdetermined causation. The practice and theory of tort law was vexed by this problem, and, although controversies remain, came up with a solution applicable to causation generally, including overdetermined voting outcomes. Customarily, according to Wright, tort law uses the “but-for” test of actual causation:28 an act is the cause of an injury if and only if, but for the act, the injury would not have occurred. The act is a necessary condition of the injury. The but-for test works well in the vast majority of cases, but breaks down when causation is overdetermined by preemption or duplication. Preemptive causation: Peter shoots and kills Mary just as she was about to drink a cup of tea fatally poisoned by Paul. According to the but-for test, Peter’s shot was not a cause of Mary’s death: if Peter had not shot Mary, she would have died anyway. Duplicative causation: Smoky and Blaze independently start separate fires, each fire is sufficient on its own to destroy Suzanne’s house, the two fires converge and together burn down her house. According to the but-for test, neither Smoky nor Blaze caused the destruction of Suzanne’s house: if Smoky had not started a fire, Suzanne’s house would have burned anyway. As applied to voting, if there is anything more than a bare majority for a win, then none of the individual voters cause the win. This can’t be right. Hart and Honoré,29 refined by Wright,30 devised the Necessary Element of a Sufficient Set (NESS) test of causation, which subsumes the but-for test for simple causation, but also gives better answers for cases of overdetermined causation: The essence of the concept of causation under this philosophic account is that a particular condition was a cause of (condition contributing to) a specific consequence if and only if it was a necessary element of a set of antecedent actual conditions that was sufficient for the occurrence of the consequence. (Note that the phrase “a set” permits a plurality of sufficient sets.)31

Did Smoky cause the destruction of Suzanne’s house? Yes, because his action was a necessary element of a set of antecedent actual conditions that was sufficient for the occurrence of the consequence. The same goes for Blaze.32 If five units of pollution are sufficient to cause harm, and each of seven producers produces one unit, then none of the seven are responsible under the but-for test, but all are responsible under the NESS test, according to Wright.33 28 29 30 31 32 33

Wright, “Causation in Tort Law,” 1775. Hart and Honoré, Causation in the Law. Wright, “Causation in Tort Law.” Ibid., 1790. The analysis of overdetermined causation is taken to a higher level by Pearl, Causality. Wright, “Causation in Tort Law.” 1792.

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Next, suppose a producer generates five units of pollution, and a second two units. Under the but-for test, the second producer bears no responsibility for the pollution. Under the NESS test, the second producer’s two units are a necessary element of a sufficient set of actual antecedent conditions that include three of the five units from the first producer. Responsibility for harm should be attributed 5/7 to the first producer and 2/7 to the second. Goldman34 was the first to apply ideas about overdetermined causation to the problem of voting, and a correct understanding of it prevents the absurd conclusion that duplicative voters are not responsible for the outcome. I cannot here do justice to Tuck’s35 sustained and valuable development of such ideas with respect to collective action in general. On the particular case of voting, however, we differ. He considers voting a collective action of determinate threshold, having only what I have called its winning value. If voting were to have only winning value, then the redundancy objection would recur once we considered opportunity costs, or so it seems to me. If one expects that her contribution to a pivotal public good is likely redundant, and that there is likely a net benefit to an alternative effort that would advance some continuous public good (or is pivotal to some other pivotal public or private action), then she should choose the nonredundant action. Uncertainty about the threshold of pivotality changes the decision calculus somewhat, but the same objection would hold. If pivotality were the applicable consideration, then two further problems arise. First, why stop at the immediate election? One would want to pivotally elect a member of Congress who would be pivotal in the House, pivotally elect a senator who would be pivotal in the Senate, and pivotally elect a president in one’s state and again in the Electoral College, all of whom together would be pivotal in enacting policy.36 Minuscule p to the fourth power would require an impossibly colossal B to motivate voting. Second, anyone certainly expecting to be in the minority would abstain from casting a futile vote; but many such persons do vote. Hence, pivotality and the associated question of futile or redundant action are likely not widely relevant to democratic voting.

5. is a vote irrational if its benefit is “imperceptible”? I think it’s safe to say that many voters also care about how much their issue wins or loses by. Call this the mandate value of voting.37 In a majority-rule election, it is possible that a minority voter would be happy with a larger minority, and a majority voter happy with a larger majority, each for outcome-related reasons. Many people want to advance causes that they believe would make their 34 35 36 37

Goldman, “A Causal Responsibility Approach to Voting.” Tuck, Free Riding. Adapted from Jankowski, “Altruism and the Decision to Vote.” Originated by Stigler, “Economic Competition and Political Competition.”

Why It’s Rational to Vote

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community and country better, and do so in nonpolitical civic action, in electoral action, and in nonelectoral advocacy, each instrumental rather than merely expressive in purpose. For example, adherents of a minority cause, such as abolitionism in 1835, would value an increase in support by public opinion from 1 percent to 5 percent as progress toward their ultimate goal. Fowler and Smirnov38 remind us that politicians and voters might care about electoral and policy results over a sequence of elections rather than in just one. If so, then winners may shift to more preferred policies after a large margin of victory because of less resistance by the opposition and less fear of the next election. Also, a large margin provides new information about the location of the median voter, which affects the positions offered by parties in the next election. They propose a dynamic calculus of voting, in which turnout is driven not by pivotality, but by what I have called the mandate value. If policy-motivated parties change platforms in response to mandates, then there exists a nonnegative motivation to vote for all possible beliefs about the closeness of the election (a benefit that can be outweighed by the cost of voting). Castanheira39 also deduces that, when mandate matters even though pivotality does not, instrumental rationality is compatible with large turnouts. Franklin40 as well recognizes that a voter’s instrumental purpose may extend beyond the present election. If Howard Dean, chair of the DNC, cares only that the Democrat get the maximum number of votes and assigns no further value to winning the race, then his utility would be a strictly increasing function from 0 to 100 percent proportion of the total votes for the Democrat (see Figure 2.2).41 Those who value both the proportion of the vote for their issue and that the issue wins would probably have an S-shaped utility function (see Figure 2.3). Finally, a centrist of some sort might want the Democrat to win, and might value a little more the Democrat winning up to 55 percent, but otherwise would increasingly disvalue a landslide for the Democrat, because the winner would institute extreme policies or would act in an unaccountable fashion, and would at some point change her vote to the Republican.42 If there is a mandate value to voting, then an individual’s contribution to the outcome is no longer the probability p of being decisive, but a share, call it q, in advancing the mandate, roughly around 1/n where n is the number of citizens voting the same way. Individuals would vote if qB > C. Thus if B were small, as it almost always would be if the typical voter valued only his private interest and 38 39 40

41

42

Fowler and Smirnov, Mandates, Parties, and Voters. Castanheira, 2003, 830. Franklin, Voter Turnout and the Dynamics of Electoral Competition in Established Democracies since 1945, 42. The marginal value of voting to the pure pivotalist voter would be zero throughout the range except for a sharp spike at the pivot point. The marginal value of voting to the pure mandate voter would be positive and constant throughout the range. Termed “mandate balancing” by Fowler and Smirnov, Mandates, Parties, and Voters, who offer evidence for its existence.

Gerry Mackie

Value to Voter

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0

.5

1

Vote Share of Favored Candidate

Value to Voter

figure 2.2 Voting: only value mandate

0

.5 Vote Share of Favored Candidate

1

figure 2.3 Voting: value winning and mandate

not the public interest, then the citizen would still not be motivated to vote. I amend, or clarify, earlier accounts of mandate by appeal to the evidence that citizens value the public interest: q(Bself + αNBsociety) − C > 0. Doing one’s share in advancing a great public good is more likely to exceed the costs of voting, and, I suggest, is sufficient to motivate many to vote for instrumental purposes. Also, citizens certainly expecting to be in the minority or in a redundant supermajority in any isolated election are still motivated to vote by the prospect of advancing their cause in further elections and other contributory action. The second claim is that it’s irrational for one person to contribute toward advancing a larger cause, whether it’s playing in a basketball game or fighting World War II, because the contribution is imperceptible. The outcome of an

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election would not be noticeably different in the absence of one person’s vote; therefore, it is irrational for him to bother. The argument originates with Olson, who claims that his egoistic logic of collective action would necessarily apply as well in large groups of pro-social cooperators, those who “in the absence of social pressure act in a selfless way,” whenever their potential contribution to a collective action is imperceptible. He says that such a contribution would always be irrational, and that a pro-social cooperator would always “allocate his philanthropy in order to have a perceptible effect on someone.”43 Although Olson is clear about why he thinks egoists in a small group would respond to social incentives such as acceptance and status, he is not clear about why those who would act selflessly in the absence of social pressure would only be interested in making perceptible contributions. Also, he is not clear about the difference between futility and imperceptibility. Olson likens the imperceptible contributor to a man who tries to hold back a flood with a pail, “more of a crank than a saint”.44 If an individual were to expect that no others would contribute to flood prevention, then his lone contribution would be of no marginal value, and hence would be futile: the cresting of the river above flood stage would do the same damage regardless of his action. In the voting case, a lone vote is of no marginal value because only one person voting is far from sufficient to assure democratic accountability. It depends on the type of collective good. To be the only one to contribute to a blood drive would probably make a difference to at least one recipient. If there were a local practice known to have worked in the past of many individuals taking their pails to the threatening river, then a noncontributor would be more of a cheat than a rationalist. If a citizen believes that enough other citizens vote, then it is possible that the combined winning and mandate benefits of the vote to her would exceed her cost of voting. The imperceptibility reasoning is both ruinous and fallacious. If global warming were a threat to life on earth, and each of us reasoned that her own contribution to an effort to meliorate the threat is imperceptible and because of that no longer advisable, then we would all be doomed. Parfit45 argues that there are imperceptible harms and benefits, and that it is a mistake to ignore imperceptible effects, and I do not know of reasons to reject his arguments. To illustrate, I’ll adapt a simple example from Glover.46 There is an unarmed village of a hundred people, each about to dig into his own lunch of a hundred beans. One hundred bandits descend on the village, and each bandit steals a lunch from one villager. This is wrong. The villagers go hungry. Then a philosopher among the bandits arrives at a new principle: do no perceptible harm. On the next raid, each bandit takes one bean from each villager. One bandit’s harm to any one 43 44 45 46

Olson, The Logic of Collective Action, 64. Ibid. Parfit, Reasons and Persons, 75 82. Glover, “It Makes No Difference Whether or Not I Do It.”

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villager is imperceptible. But the villagers still go as hungry as when they were perceptibly harmed by each bandit. The point applies as well within the realm of individual choice. Suppose Fatima wants to become a champion gymnast. Her friends correctly tell her that any one day of practice only imperceptibly advances her toward that goal, but incorrectly tell her that for that reason she should skip every practice. Returning to the infuriating Volkswagen pushed out of the ditch, now suppose that there are eleven of us to push the car down the road 20 miles to the nearest mechanic. The more of us who push (taking turns, so as to preserve strength), the faster we get to the mechanic. The contribution of each is pivotal to the goal of getting there the soonest. Any one pusher’s contribution is minuscule compared to the total effort, but that pusher’s absence would lengthen the time it takes. Also, if all eleven take turns pushing, then their actions reveal that for each the benefit of doing so exceeds the cost. A frequent objection is that, nevertheless, imperceptibility means that the benefit is insufficiently vivid to motivate voting. The objection ultimately appeals to irrational considerations, not to rational ones. Understand that the imperceptibility objection is not that the actor believes that the benefit of the contribution is less than its cost. After all, 88 percent of respondents (in scattered elections from 1952 to 2002) in the American National Election Study disagree with the statement, “So many other people vote in the national elections that it doesn’t matter much to me whether I vote or not.” The imperceptibility objection is an observer’s judgment that an actor such as one of those respondents should believe that the benefit of his contribution is nothing. The observer mistakenly believes that if a mildly beneficial contribution is a small part of a large effort, then that makes the contribution of zero benefit. Perhaps the fallacy becomes more plain by a shift in context. Mao Tse-Tung said in 1955, The United States cannot annihilate the Chinese nation with its small stack of atom bombs. Even if the US atom bombs were so powerful that, when dropped on China, they would make a hole right through the earth, or even blow it up, that would hardly mean anything to the universe as a whole, though it might be an event for the solar system.47

Need it be said that blowing up the earth would rightly concern we humans, regardless of how small the earth is compared to the whole universe? Moreover, voting in an election is more vivid than many other public goods obtained from many small contributions. There are campaigns and mobilizations to solicit one’s vote, and the election outcome is rapid and definitive as compared, say, to taking a shorter shower tomorrow in order to help reduce global warming over the next two centuries. Most voters value the public good, most say they vote in order to influence the outcome, and most do vote, consistent with revealing that qB > C. I have argued that voting, whether nonpivotal or imperceptible, does have causal force on the outcome. Next I shall argue that a voter can advance the public good of both democracy and a decision on some particular issue, that it 47

Mao, On Practice and Contradiction, 106.

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can be rational for an individual to advance a public good, and that many voters say they are motivated by duty and wanting to influence the outcome.

6. a vote contributes both to advancing democracy and to the decision on a particular issue There is another consideration, originally mentioned by Downs,48 that one may vote as well in order to support democracy itself, and I think it is quite a plausible motivation. Suppose I can vote in an election where there are two candidates, and that Downsian convergence or some other mechanism renders the candidates so close in their positions that I don’t care which one wins. Still I might want to vote in order to advance, albeit “imperceptibly,” the dynamic public goods of democratic accountability and democratic stability. I may plausibly believe that if turnout is low, officials would think the populace to be apathetic and do bad things they wouldn’t do if turnout were high. I don’t want to be bothered much by the details of public policy, but I do want to sustain a liberal democratic polity. I may plausibly believe that keeping up high turnout and high democratic accountability deters my fellow citizens and our officials from the temptations of autocracy. If voting is largely corrupt, or if too few are voting to establish accountability, or if I have the flu on election day, or if it’s certain that almost everyone is voting, perhaps I would not vote. However, when I do vote for one candidate even when indifferent between them, it need not be an ineffectual cheer for democracy; it could be that I am doing my part to advance democratic accountability and stability. All voters contribute to these ends, whether they intend to or not, and perhaps the normal voter intends both to support democracy and to support or oppose a particular issue. Many models of voting, formal and informal, consider only the voter’s believed net benefit (to himself, or better, to some or all of society) in choosing between the Moose Party and the Elk Party. Sometimes there is good reason to believe that the Moose Party is vastly better than the Elk Party, but a huge differential is less likely in an established democracy. For centrists in a two-party system, the difference between the choices, even in terms of benefit to all, is suspiciously thin to motivate voting. I think there is something to this worry. A first-order value of voting as support for democracy could be more important sometimes than the second-order value of favoring one issue over another (see Figure 2.4). This voter ranks contributing to democracy at 2 units of some measure and contributing to autocracy at 0 units. She is indifferent between contributing to the Democrat or the Republican, and will flip a coin to decide which to vote for. Her vote is motivated entirely by the first-order value of contributing to the support of democracy, and not at all by the second-order value of contributing to

48

Downs, An Economic Theory of Democracy.

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to vote is then attributed to nonconsequentialist motivations. However, it is possible that a person who disagrees with the statement could be motivated by the good consequence of advancing democratic accountability and stability, in other words, motivated to influence the outcome. The American National Election Study from 1964 to 2004, posed this question: “How much do you feel that having elections makes the government pay attention to what the people think, a good deal, some or not much?” The results: 51 percent said a good deal, and 36 percent said some. Counting this as a duty proxy is also dubious because one could believe that everyone has duties both to care about the community and to vote, while also believing that contemptible people who don’t bother to care shouldn’t bother to vote. The “doesn’t care” question is used as a proxy for duty motivation because about half of respondents agree and half disagree, and the variation is more convenient for statistical analysis. Two other questions that arguably are a proxy for duty, to be discussed shortly, would classify nine out of ten respondents as duty voters. Voting for the sake of advancing democratic accountability is probably a continuous public good, and thus every vote cast for this purpose would be pivotal. Its value is probably represented by an S-curve. In the world we live in, having too much democratic accountability is unlikely, although it is a logical possibility. There would be no democratic accountability if 1 percent of the citizens voted. There is some threshold at which minimal accountability is established, and it depends on the importance of the issue. For a national office, say for concreteness that a 10 percent vote is necessary for the least amount of democratic accountability. Each additional vote is valuable, but toward the beginning each additional vote is worth more, and toward the end each additional vote is worth less.

7. is it irrational for an individual to advance the public good? If the voter values the public good and believes that she could have causal force on the outcome, she would still be unwilling to contribute, according to Olson’s52 egoistic logic of collective action. An important portion of the professional audience accepts Olson’s logic. Therefore, I must go into detail about why his egoistic logic is inapplicable.53 Pellikaan and Van der Veen54 are especially apt. They study voluntary citizen response to three environmental dilemmas in the Netherlands, such as bringing household toxic waste to the 52 53

54

Olson, The Logic of Collective Action. On the conceptual and empirical limitations of Olson’s logic more generally, see, e.g., Green and Shapiro, Pathologies of Rational Choice Theory, 79 92; Gintis et al., Moral Sentiments and Material Interests, passim and 339 378; and multiple references cited in Jones, “The Logic of Expressive Action.” Pellikaan and Van der Veen, Environmental Dilemmas and Policy Design.

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recycling center and economizing on home energy usage (each a continuous public good, not a step good). Such actions involve potential contributor’s dilemmas, in which a common good would necessarily be defeated by individually rational actions. Their structure is such that it is more costly in time and resources for an agent to contribute than not, but such that most would be better off if most did contribute, although most would be worse off if most did not contribute; and each individual has a belief about how many others would contribute or not. An additional premise is required to convert the potential contributor’s dilemma into an actual one: citizens must believe it is better to avoid the cost of contribution, regardless of the contributions of others. A potential contributor’s dilemma is an actual one for firms constrained by economic competition, according to Olson’s original example. The firm’s actions are determined by a thick theory of rationality: competition constrains each narrowly to maximize its own profit, and those which don’t are extinguished. Suppose that member firms in a group would all be better off if each lowered production so as to increase prices. Each firm, however, maximizing its own profit, would be better off not to go along, and thus the group good goes unrealized. Firms on the competitive market cannot accomplish collective action, save for external coercion for large groups such as those found under perfect competition, or selective incentives that would otherwise motivate membership in small groups such as those found under oligopoly. Firms motivated by profit are not individual humans, however, and even less so are they democratic voters. The utility of the firm is determined by monetary benefit less monetary cost, an objective measure, but the utility of the individual is subjectively determined. In the absence of an explicit thick theory determining the order of their preferences, all that applies to voters is a thin theory of rationality: that they consistently order their preferences. Olson’s is the observer’s perspective on collective action: objectively determined ranking of agents’ preferences is assumed as a consequence of an otherwise accepted theory.55 The actor’s perspective on collective action empirically investigates the subjective preferences of actual individuals in contributor’s dilemmas. Pellikaan and Van der Veen find that almost none of their respondents report Olsonian preferences with respect to the potential dilemmas. Contrary to the thick theory, and consistent with thin theory, there is a wide heterogeneity of rankings over the alternatives. The two most common rankings – 80 percent of the total for the chemical waste problem – indicate unconditional cooperation in contributing to the public good (see Figure 2.5).56 Surprisingly, not that many

55

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Olson’s predictions about the collective action of firms may not be empirically vindicated; see Hansen et al., “The Logic of Private and Collective Action.” Dutch citizens show high and unconditional cooperation on the potential dilemmas of chemical waste and energy saving. Another purported dilemma, reducing air travel for the sake of the atmosphere, encountered a much less generous response, even rejection, suggesting that respond ents are not reporting “Sunday preferences.”

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C

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figure 2.5 The actor’s perspective on collective action

(5 percent for chemical waste) are conditional cooperators, willing to contribute only if others do so. The authors speculate that the high proportion of unconditional cooperation is due to the low cost of contribution: one expects others to contribute because of low cost, and one doesn’t bother to check up on others for the same reason. Respondents expected 65 percent of others to cooperate in chemical waste, 69 percent in saving energy, but only 6 percent for reducing air travel. I had my graduate seminar students keep a diary of pivotal, contributory, and expressive actions over a week’s time. Not surprisingly, they frequently found themselves engaged in contributory action. It is a pervasive behavior, I submit. An ordinary person contributes, nonpivotally or imperceptibly, to many collective efforts: the Girl Scouts, the church, the school dance, the soccer team, the trips festival, the antiwar rally, the litter bag in the car, the potluck dinner, the Republican presidential campaign, and so on. Frey and Meier57 study low-cost, anonymous, and voluntary contributions of Swiss students to two social funds for distressed students. Cost per student per semester is about seven dollars, and in 85,000, or 69 percent, of cases, students contributed to one or both funds. Notice that contribution cannot be construed as chance of pivotally bringing about a step good. Contribution declines little with 57

Frey and Meier, “Pro Social Behavior in a Natural Setting.”

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repetition, suggesting that students understand the incentives at stake. About three-fourths say they don’t talk about the social funds with their friends, and three-fourths say that friends don’t know about their contribution, suggesting few social constraints. The Dutch citizens and the Swiss students make small contributions to large and continuous public goods. Voting is also a small contribution to a large and continuous public good, more vivid in outcome than the Dutch and Swiss cases. Individual humans are self-interested, but many of them are not exclusively self-interested. A theory predicts that it would be irrational for a firm on the competitive market to contribute to a public good, but there is nothing irrational about an individual choosing to do so. Perhaps someone would object that nature makes individuals pure egoists, but even if biological egoism were true, it would not necessarily imply psychological egoism.58 Further, those who take nature as their guide must confront the fact that, whatever the evolutionary explanation, voting behavior is observed in some social animals.59 The most striking example is Manyaro buffalo cows who routinely vote, or, if you like, exhibit voting behavior, over the choice of the next communal grazing site.60 If voting behavior, a definite cost to the organism, did not deliver some larger gene-level benefit, then presumably it would be selected out. It seems that nature worries neither about the paradox of voting nor about the paradox of nonvoting.61 And what of humans? In democracies, voter turnout is stable and high, ranging per decade since the end of World War II from 61 to 68 percent of the voting age population.62 Mean turnout among twenty-two established democracies from 1945 to 1999 is 84 percent of registered voters.63 Among the established democracies, Switzerland at 57 percent and the United States at 56 percent of registered voters, are outliers. For each, this is probably due to weak responsiveness of the regime to voters’ preferences, in Switzerland because of multiparty cartelization of parliament and the executive, and in the United States because of separation of powers, less competitive elections, and extraordinary special-interest influence on policy.64 Each is also an outlier in the frequency and nonconcurrency of elections (Franklin points out that before cartelization, the Swiss enjoyed both high turnout and frequent elections). 58 59 60 61

62 63

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Sober, “Did Evolution Make Us Psychological Egoists?” Conradt and Roper, “Consensus Decision Making in Animals.” Prins, Ecology and Behavior of the African Buffalo. Swarming honeybees choose the site of a new hive by a process resembling the single transferable vote, thereby violating Arrow’s independence of irrelevant alternatives condition. Almost all human subjects violate the independence condition in recent experiments. Davies et al., “Intuitive Preference Aggregation: Tests of Independence and Consistency.” IDEA, 2006. Franklin, Voter Turnout and the Dynamics of Electoral Competition in Established Democracies since 1945, 11. Ibid., 91 118.

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Lower turnout in the United States (even worse in off-year, state, and local elections), and use of the winner-take-all voting rule, may bias the views of American academics on the irrationality of voting. It is possible that the majority of the world’s democratic citizens is deluded in deciding to cast a vote, but the existence of billions of anomalies suggests it is more likely that the conceptual understanding of the paradox of nonvoting is somehow mistaken.

8. voters are motivated by duty and by influence on outcome Table 2.1, illustrating results from the American Citizen Participation Study, shows that almost all survey respondents are motivated to vote by duty and by the desire to influence the outcome. Summarizing the study’s in-depth interviews with a subset of activists, Schlozman, Verba and Brady65 report that 93 percent mention civic gratifications (e.g., “my duty as a citizen”) as a reason for voting, 61 percent policy gratification (“to influence government policy”), 20 percent social benefits (be with people, meet people, gain respect), and 3 percent material benefits. Duty is the strongest motive, wanting to influence public policy the second strongest. Olsonian selective incentives are quite weak. In Opp’s66 multivariate analysis of German survey respondents, an interaction variable of present discontent with German democracy and capacity to influence politics is the strongest, and the second strongest is agreement with the statement that, “In a democracy, it is the duty of every citizen to participate regularly in elections.” Accepting the paradox of nonvoting, Opp argues that citizens vote because they falsely believe their votes to be pivotal. Anyone who endorses the survey statement that one personally “could exert influence on politics” by engaging political activities is so mistaken, says Opp. Blais67 finds that a substantial minority of voters is prone to overestimate chance of pivotality, but a clear majority is roughly accurate about their extremely remote chances to individually decide an election. Finkel and Muller’s68 collective interest model of political participation, based on German panel data, finds less support for Olsonian selective incentive variables and more support for variables involving “individual’s dissatisfaction with the provision of collective goods, beliefs that group actions can be successful, and beliefs in the importance of their own participation”.69 Again, people are motivated to influence the outcome, and all of these scholars comment on the conflict between their empirical findings and the theoretical expectations associated with the paradox

65 66 67 68 69

Schlozman et al., “Participation’s Not a Paradox.” Opp, “Why Do People Vote?” 62 70. Blais, To Vote or Not to Vote, 92 114. Finkel and Muller, “Rational Choice and the Dynamics of Collective Political Action.” Ibid., 37.

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of nonvoting. Finally, the fact that mass voters engage in strategic voting70 is also consistent with the view that they wish to influence the outcome. Duty is often the strongest reported motivation to vote, when measured, but it is the least conceptualized and measured of the major turnout variables. Campbell et al.71 first reported the overwhelming responses of subjects suggestive of a moral motivation to vote: seven-eighths disagreed with “It isn’t so important to vote when you know your party doesn’t have a chance to win,” and with “So many other people vote in the national elections that it doesn’t matter much to me whether I vote or not.” Blais is correct to say, I believe, that voter duty should be defined as the belief that it is wrong not to vote in a democracy. He surmises that about half of the citizens in democracies have a strong sense of duty about voting. In his studies of university students, Quebec referendum voters, and British Columbia voters, 84 to 99 percent affirm statements such as, “It is the duty of every citizen to vote,” “It is important to vote even if my party or candidate has no chance of winning,” and “In order to preserve democracy, it is essential to vote.” The questions used to proxy duty are all compatible with instrumental purpose. Someone who disagrees with the statement “So many other people vote in the national elections that it doesn’t matter much to me whether I vote or not” is likely instrumentally motivated to advance the public good by her single “imperceptible” vote. Someone who says she should vote even if her party has no chance of winning is likely instrumentally motivated to advance her causes over a series of elections and other participatory actions. Someone who says that it is essential to vote in order to preserve democracy is likely instrumentally motivated to advance democratic accountability and stability. Appeal to duty is not an escape from the pivotalist trap. In the university student study, about 50 percent said they would feel guilty about not voting, but less than a fifth believed family or friends would think badly of them for doing so. In the Quebec and British Columbia studies, around 70 percent said they would feel guilty for not voting and a bit less than half said they would expect (mostly mild) disapproval from family and friends; in a multivariate regression, adding the disapproval variable is not significant and the force of the duty variable remains unchanged. The strength of guilt and the weakness of shame indicate that voting is primarily an internally endorsed moral norm and not an externally enforced social norm.72 High-duty voters are motivated by duty, and low-duty voters are motivated by perceived benefits, probability of influence (expected closeness of election), and costs of voting associated with the issue at stake. With one partial exception, however, Blais’s benefit measures are based on questions about how the outcome affects the subject “personally,” clearly tapping private benefit rather than public benefit. 70 71 72

Cox, Making Votes Count. Campbell et al., The Voter Decides, 194 199. Elster, Explaining Social Behavior, 104 105, 353 371; Finger et al., “Caught in the Act.”

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An action can be a duty for its own sake, for the sake of its consequences, or for both. Investigators baffled by the paradox believe that an individual vote almost never has instrumental purpose. They, beginning with Riker and Ordeshook,73 notice that many citizens refer to duty as a motivation for voting. They assume that citizens consider voting a duty only for its own sake, a nonconsequentialist duty, thus providing a resolution of the paradox by assigning an intrinsic value to the act of voting. But they supply no argument or evidence for this assumption. If the duty to vote were non-consequentialist, then within a country there would be no variation in turnout between more important national elections and less important supranational or subnational elections. Yet even in high turnout countries, there is much lower turnout in the less important elections. Given that so many voters say they want to influence the outcome, someone who says that she has a duty to vote likely means that she has the consequentialist duty to advance the public good, that is, she is instrumentally motivated. Even a rational egoist, for example, could accept a consequentialist duty to consistently order her own ends: Fatima is constantly tempted to skip gymnasium practice; as each session approaches, her inclination is not to go, but her personal rule is to ignore that inclination and dutifully pursue the all-thingsconsidered end more important to her of becoming a champion gymnast. Now and then it could be slightly better overall to skip practice, but Fatima knows that temptation may mislead such calculations, and only skips practice for something obviously more important such as taking care of her mother when she is ill or seeing a good friend who is only in town one day. Fowler and Kam74 find that citizens with more patience, who demonstrate a low discount of future value, are more likely to vote.75 Those who are able to overcome temptations in pursuit of their private interest also may be able to overcome temptations in pursuit of the public interest. Blais (and Thalheimer) carried out in-depth interviews with 108 regular voters in Montreal, 85 percent of whom considered it an important personal duty to vote in all elections. In the interviews, outcome was mentioned somewhat less frequently than duty, and it was never mentioned before duty. The strong duty voters vote a bit less in municipal elections, more than do other regular voters, but do not vote more than others do in school elections: “the moral obligation to vote is believed to apply to all elections in which the stakes are deemed to be relatively important . . . stakes . . . defined in terms of broad issues not narrow personal interest.”76 Two kinds of motivations underlie the sense of duty: “voting is something one should do because one believes in 73 74 75

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Riker and Ordeshook, “A Theory of the Calculus of Voting.” Fowler and Kam, “Patience and Turnout.” Patience is not correlated with duty in their study, but they proxy duty by disagreement with the question “If a person doesn’t care how an election comes out then that person shouldn’t vote in it.” Blais, To Vote or Not to Vote, 110.

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democracy” and “voting is something one should do because one cares about the community.”77

9. discussion “Habit,” better call it “inertia” to avoid begging the question as to the nature of the mechanism, is an important independent force in the voting decision: a youth who votes in her initial three elections is likely to vote again in future elections, and one who does not vote in her first three is unlikely to vote in future elections.78 This factor is consistent with many theories of voter motivation. Perhaps it involves learning how to vote. Someone who doesn’t have a driver’s license by age 21 is unlikely to drive at a later age, and someone who has a driver’s license by age 21 is likely to drive at later ages, not “habitually” for no purpose, but rather when she has reason to do so. Perhaps one also learns how to master voting as a duty. How does the contributory theory compare to other prominent theories of voter motivation: the expressive, the pivotal-egoistic, and the pivotal-altruistic? For the expressive theory, a choice can be decomposed into its instrumental element, the value to the chooser of the outcome that would be achieved by the choice, and its expressive element, the value to the chooser of expressing a desire for that choice. Since a vote is either nonpivotal or imperceptible, the instrumental value of voting is nil, and all that remains is the expressive value. A citizen votes only in order to express her preference, not in order to have any influence on the outcome. For the contributory theory it is possible that the voter values at zero the act of expressing her contribution. What she values is her effective contribution to the effort. If she’s devoted to a cause, she may value writing two letters to the editor on global warming policy somewhat more than she does writing one, and that makes sense, even though neither action is pivotal or perceptible. Her letters are secondarily an expression of preference, valued or not, but primarily they are intended to help bring about a change. Further, the acknowledged79 Achilles heel of the expressive account is that it cannot account for strategic voting or its consequence of restricting the effective number of parties in certain electoral systems.80 It has been plain since Downs’81 origination of it that the pivotal-egoistic account fails. Its failure is the very reason we discuss the paradox of nonvoting. Measures of probability, benefit, and cost might be significant at the margin, but

77 78

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Ibid., 111. Franklin, Voter Turnout and the Dynamics of Electoral Competition in Established Democracies since 1945, passim, 204 205. Brennan and Lomasky, Democracy and Decision, 121 123. Each shown by Cox, Making Votes Count. See Mackie, “An Examination of the Expressive Theory of Voting.” Downs, An Economic Theory of Democracy.

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that is consistent also with the altruistic-pivotal, contributory, and other accounts. To argue that marginal effects in voter turnout studies vindicate the pivotal egoistic model of voter motivation is like arguing that a taller man is more likely to bump his head on the moon.82 The altruistic-pivotal account says that the problem lies in its assumption of egotism, and the contributory account says that the problem lies in its assumptions of egotism and pivotality. The altruistic-pivotal account, according to its authors,83 is consistent with these observations: people make small contributions to national political campaigns; turnout is higher, not lower, in larger elections;84 turnout is higher in close elections; people vote strategically; and surveys show that voters are prosocially motivated. The contributory account is consistent with the same observations. What observations might distinguish between the two? First, the contributory account predicts that citizens who are certain that their side will lose in the particular election may vote in order to advance their cause rather than to attain victory in that election, and the pivotal-altruistic account predicts that they would not. The following few hints don’t settle the empirical question, which requires far stronger evidence. One hint is that in the American National Election Study, as measured in select elections from 1952 to 1980, 90 percent of respondents disagreed with the statement “It isn’t so important to vote when you know your party doesn’t have any chance to win.” It was widely expected that the Liberal Party would win the 2000 Canadian federal election, and it had won the two previous elections in 1997 and 1993. Respondents who had not voted for the Liberals in 1997 were 10 percent less likely to state an intention to vote, and 6 percent were more likely to state an intention to vote if they believed that the candidate of their preferred party would win their district seat.85 Further, a measurement across fifteen democracies found that in most countries political loser status did not affect voters’ confidence in their ability to influence the political process.86 In addition, electoral losers exhibit a heightened potential for protest behavior,87 consistent with the next point. Second, the contributory account predicts that citizens who think it somewhat likely they will be in the minority will be more likely to vote than citizens who think it somewhat likely they will be in the majority. Those minority voters also would be more motivated to engage in nonelectoral advocacy than majority voters. The pivotal-altruistic account would predict that the proportions would be the same. What the two models share in common – that voting is an 82 83 84

85 86 87

Schwartz (1987), cited in Green and Shapiro, Pathologies of Rational Choice Theory. Edlin et al., “Voting as a Rational Choice.” It is better to distinguish more important and less important elections rather than larger and smaller ones: more people vote in U.S. federal elections than in state elections, but on average slightly fewer vote in Canadian federal elections than in provincial elections, probably because the Canadian provinces have more important powers than the American states. Anderson et al., Losers’ Consent, 166 168. Ibid., 168 170. Ibid., 45 46.

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instrumental act that aims for the public good – is more important for many purposes than is their difference.

10. conclusion If the interpretation of expected utility theory standard to the paradox of nonvoting stands, it generalizes to all cases where the individual chooses between contributing to one dynamic collective action over another. There are great contests in the world in which we live. To be dramatic, in the 1930s and 1940s, liberalism fought fascism and after the war liberalism struggled with communism; in the 1990s, democracy contended with autocracy. If expected utility theory counsels only quietism in response to such challenges, it cannot be an adequate model of practical reason. If this interpretation were a true model, then Clint Eastwood couldn’t have made his movies about the Battle of Iwo Jima. Any of the volunteer soldiers would have stayed home because each of their contributions would have been either nonpivotal or imperceptible. The interpretation grossly offends common intuitions. Have we been misled by the analogy of voting choice to consumer choice? The standard consumer transaction is the pivotal choice of one alternative over another.88 A vote is not a choice of one alternative over another, however. It is a contribution to a decision to be made by some collective of individuals over one alternative or another (usually by prior arrangement binding on every individual that the collective decision becomes the collective choice). The paradox model assumes that contribution to a collective decision is identical to an individual choice, and then discovers that almost always it is not.89 If a person votes (imperceptibly), say, in order to advance democracy, then what is the foregone alternative? It is abstention from voting, which by omission contributes (imperceptibly) to the advancement of autocracy. The person by her vote does not choose democracy over autocracy, but rather chooses to contribute to the advancement of one over another. If a person contributes to the tally of the Republican candidate, the foregone alternative is contribution to the Democratic candidate (assuming two candidates). There’s nothing irrational about this. I set aside twenty-five dollars for charity. I could contribute it to the Red Cross or to UNICEF; say I choose UNICEF. My contribution is not pivotal to UNICEF’s survival. My contribution of twenty-five dollars is imperceptible compared to the hundreds of millions given by others. But it’s twenty-five dollars 88

89

Consumer choice need not be exclusively pivotal. Suppose I desire some tastefully processed caffeine, made out of beans grown and delivered under so called fair trade conditions. My market choice pivotally brings about coffee down my gullet and a buzzing mind, but it is neither pivotal nor perceptible in bringing about fair trade and social justice. “Collective decision: A process that identifies a pattern of future coordinated actions as the intended actions of the members of a collectivity, and creates corresponding intentions in enough members of the collectivity that in the ordinary course of events the pattern is realized.” Tideman, Collective Decisions and Voting, 6.

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greater than nothing! Expected utility theory applies properly when we understand that the choice is not between one alternative or another, but rather between contributing to the advancement of one alternative over another. References Anderson, Christopher J., et al. Losers’ Consent: Elections and Democratic Legitimacy. Oxford: Oxford University Press. Barry, Brian. 1970. Sociologists, Economists, and Democracy. London: Collier McMillan. Blais, Andre. 2000. To Vote or Not to Vote: The Merits and Limits of Rational Choice Theory. Pittsburgh: University of Pittsburgh Press. Brennan, Geoffrey, and Alan Hamlin. 2000. Democratic Devices and Desires. Cambridge: Cambridge University Press. Brennan, Geoffrey, and Loren Lomasky. 1993. Democracy and Decision: The Pure Theory of Electoral Preference. Cambridge: Cambridge University Press. Brodsky, David M., and Edward Thompson III. 1993. “Ethos, Public Choice, and Referendum Voting.” Social Science Quarterly 74: 286 299. Camerer, Colin F., and Ernst Fehr. 2006. “When Does ‘Economic Man’ Dominate Social Behavior?” Science 311: 47 52. Campbell, Angus, Gerald Gurin, and Warren E. Miller. 1954. The Voter Decides. Evanston: Row, Peterson and Company. Caplan, Bryan. 2001. “Libertarianism against Economism: How Economists Misunderstand Voters and Why Libertarians Should Care.” Independent Review 5, no. 4: 539 563. Castanheira, Micael, 2003. “Victory Margins and the Paradox of Voting,” European Journal of Political Economy 19, no. 4 (November): 817 841. Chong, Dennis, Jack Citrin, and Patricia Conley. 2001. “When Self Interest Matters.” Political Psychology 22: 541 570. Citrin, Jack, and Donald Green. 1990. “The Self Interest Motive in American Public Opinion.” Research in Micropolitics 3: 1 28. Conradt, Larissa, and Timothy J. Roper. 2005. “Consensus Decision Making in Animals.” Trends in Ecology and Evolution 20: 449 456. Cox, Gary. 1997. Making Votes Count. Cambridge: Cambridge University Press. Cox, Gary. 1999. “Electoral Rules and the Calculus of Mobilization.” Legislative Studies Quarterly 24: 387 420. Davies, Todd, and Raja Shah. 2004. Intuitive Preference Aggregation: Tests of Independence and Consistency (February 18, 2004). Society for Social Choice and Welfare 7th International Meeting, 2004. Available at SSRN: http://ssrn.com/ abstract 2213600 or http://dx.doi.org/10.2139/ssrn.2213600. Dowding, Keith. 2005. “Is It Rational to Vote? Five Types of Answer and a Suggestion.” British Journal of Politics and International Relations 7: 442 459. Downs, Antony. 1957. An Economic Theory of Democracy. New York: Harper and Row. Dubner, Stephen J., and Steven D. Levitt. 2005. “Why Vote?” New York Times Magazine, November 6. Edlin, Aaron, Andrew Gelman, and Noah Kaplan. 2007. “Voting as a Rational Choice: The Effect of Preferences Regarding the Well Being of Others.” Rationality and Society 19: 293 309. Elster, Jon. 1986. Rational Choice. New York: New York University Press.

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Elster, Jon. 2007. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences. New York: Cambridge University Press. Finger, Elizabeth C., et al. 2007. “Caught in the Act: Impact of Audience on the Neural Response to Morally and Socially Inappropriate Behavior.” Neuroimage 33: 414 421. Finkel, Steven E., and Edward N. Muller. 1998. “Rational Choice and the Dynamics of Collective Political Action: Evaluating Alternative Models with Panel Data.” American Political Science Review 92: 37 49. Fowler, James H. 2006. “Altruism and Turnout.” The Journal of Politics 68: 674 683. Fowler, James H., and Cindy D. Kam. 2006. “Patience and Turnout.” Political Behavior 28: 113 128. Fowler, James H., and Oleg Smirnov. 2007. Mandates, Parties, and Voters. Philadelphia: Temple University Press. Franklin, Mark M. 2004. Voter Turnout and the Dynamics of Electoral Competition in Established Democracies since 1945. Cambridge: Cambridge University Press. Frey, Bruno, and Stephan Meier. 2004. “Pro Social Behavior in a Natural Setting.” Journal of Economic Behavior and Organization 54: 65 88. Funk, Carolyn L. 2000. “The Dual Interest of Self Interest and Societal Interest in Public Opinion.” Political Research Quarterly. 53: 37 62. Funk, Carolyn L., and Patricia A. Garcia Monet. 1997. “The Relationship between Personal and National Concerns in Public Perceptions about the Economy.” Political Research Quarterly 50: 317 342. Gintis, Herbert, Samuel Bowles, Robert Boyd, and Ernst Fehr, eds. 2005. Moral Sentiments and Material Interests: The Foundation of Cooperation in Economic Life. Cambridge: MIT Press. Glover, Jonathan. 1975. “It Makes No Difference Whether or Not I Do It.” The Aristotelian Society, Supplementary Volume XLIX. Goldman, Alvin. 2002. “A Causal Responsibility Approach to Voting.” In Readings in Philosophy: Democracy, edited by David Estlund. Oxford: Blackwell. Goodin, Robert, and K. W. S. Roberts. 1975. “The Ethical Voter.” American Political Science Review 69: 926 928. Green, Donald P., and Ian Shapiro. 1994. Pathologies of Rational Choice Theory. Yale: Yale University Press. Guttman, Joel M., Naftali Hilger, and Yochanan Shachmurove. 1994. “Voting as Investment vs. Voting as Consumption: New Evidence.” Kyklos 47: 197 207. Hansen, Wendy L., Neil J. Mitchell, and Jeffrey M. Drope. 2005. “The Logic of Private and Collective Action.” American Journal of Political Science 49, no. 1: 150 167. Hart, H. L. A., and Tony Honoré. 1959. Causation in the Law. Oxford: Clarendon Press. Institute for Democracy and Electoral Assistance. 2006. International IDEA Voter Turnout Website. http://www.idea.int/vt/. Jankowski, Richard. 2002. “Buying a Lottery Ticket to Help the Poor.” Rationality and Society 14: 55 77. Jankowski, Richard. 2007. “Altruism and the Decision to Vote.” Rationality and Society 19: 5 34. Jones, Philip. 2007. “The Logic of Expressive Action: When Will Individuals ‘Nail their Colours to the Mast?’ ” British Journal of Politics and International Relations 9, no. 4 (2007): 564 581. Kinder, Donald M., and Roderick Kiewiet. 1981. “Sociotropic Politics: The American Case.” British Journal of Political Science 11: 129 161.

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Levmore, Saul. 2005. “Public Choice Defended.” University of Chicago Law Review 72, no. 2: 777 796. Lewin, Leif. 1991. Self Interest and Public Interest in Western Politics. Oxford: Oxford University Press. Mackie, Gerry. 2003. Democracy Defended. Cambridge: Cambridge University Press. Mackie, Gerry. 2011. “An Examination of the Expressive Theory of Voting.” Unpublished manuscript. Miller, Dale T. 2001. “The Norm of Self Interest.” American Psychologist 54: 1053 1060. Mao Tse Tung. 2007. On Practice and Contradiction. London: Verso Books. Olson, Mancur. 1971. The Logic of Collective Action. Cambridge: Harvard University Press. Opp, Karl Dieter. 2001. “Why Do People Vote? The Cognitive Illusion Proposition and Its Test.” Kyklos 54: 355 378. Parfit, Derek. 1994. Reasons and Persons. Oxford: Oxford University Press. Pearl, Judea. 2000. Causality: Models, Reasoning, and Inference. Cambridge: Cambridge University Press. Pellikaan, Huib, and Robert J. Van der Veen. 2002. Environmental Dilemmas and Policy Design. Cambridge: Cambridge University Press. Prins, H. H. T. 1996. Ecology and Behavior of the African Buffalo. London: Chapman and Hall. Rawls, John. 2005. Political Liberalism, expanded edition. New York: Columbia University Press. Riker, William H., and Peter Ordeshook. 1968. “A Theory of the Calculus of Voting.” American Political Science Review 62: 25 42. Schlozman, Kay Lehman, Sidney Verba, and Henry E. Brady. 1995. “Participation’s Not a Paradox: The View of American Activists.” British Journal of Political Science 25: 1 36. Schwartz, Thomas. 1987. “Your Vote Counts on Account of the Way It Is Counted.” Public Choice 54: 101 121. Sears, David O., and Carolyn L. Funk. 1990. “The Limited Effect of Self Interest on the Political Attitudes of the Mass Public.” The Journal of Behavioral Economics 19: 247 271. Shabman, Leonard, and Kurt Stephenson. 1994. “A Critique of the Self Interested Voter Model: The Case of a Local Single Issue Referendum.” Journal of Economic Issues 4: 1173 1186. Sober, Elliot. 1994. “Did Evolution Make Us Psychological Egoists?” In From a Biological Point of View, edited by Elliot Sober. Cambridge: Cambridge University Press. Stigler, George. 1972. “Economic Competition and Political Competition.” Public Choice 13: 91 106. Tideman, Nicolaus. 2006. Collective Decisions and Voting. Burlington: Ashgate. Toka, Gabor. 2009. “Expressive versus Instrumental Motivation of Turnout, Partisanship, and Political Learning.” In The Comparative Study of Electoral Systems, edited by Hans Dieter Klingemann. Oxford: Oxford University Press. Tuck, Richard. 2008. Free Riding. Cambridge: Harvard University Press. Wright, Richard W. 1985. “Causation in Tort Law.” California Law Review 73: 1735 1828.

3 How Countries Can Negotiate to Allocate Greenhouse-Gas Emissions A Simple Proposal John E. Roemer*

1. introduction Jon Elster has written that there are three ways of making collective decisions: arguing, bargaining, and voting.1 In this chapter, I will propose how one of the most important – perhaps the most important – collective action problem of our time might be solved by use of a combination of arguing and bargaining. I refer to the necessity for the large nations to come to an agreement controlling greenhouse gas (GHG) emissions. The international Copenhagen conference in December 2009 was essentially a failure. A large number of participating nations signed on to a vague agreement to keep global temperature from rising no more than two degrees Celsius above preindustrial levels. But no mechanism was agreed upon to realize this goal. I will not review here the evidence for the necessity of controlling GHG emissions; suffice to say that Nicholas Stern has written that this is probably the greatest collective action that has ever faced mankind.2 China and the United States are at * I met Jon Elster in 1980 through our joint interest in analytical Marxism. He has been an inspiring figure to me over these thirty years. Foremost among his virtues is intellectual honesty, both with regard to his own work, and that of others: he possesses a strong compass for what is important, a willingness to praise work that is, and to criticize work that is not. His search for good social science has led him to revise drastically his methodological views, a change that few would have the courage to do. (I am undecided whether we should take his advice to discard grand social theory and only study “mechanisms,” but the position must be advocated. See Elster, “Excessive Ambitions.”) In this trait, I can hope, perhaps in vain, to emulate him. With regard to his wonderful synthetic ability he is the anchorman of the social sciences in our time I can but only admire. This chapter presents, in simplified form, an idea that is studied in much more detail, in Llavador et al., Sustainability for a Warming Planet, where we calculate recommended paths of emissions’ allocations to the global south and north over the next seventy five years. I thank my collaborators H. Llavador and J. Silvestre for their permission to present some ideas from that work here. 1 Elster, Explaining Social Behavior. 2 Stern, The Economics of Climate Change.

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present the two largest emitters: each emits about one-quarter of global GHG emissions. If they can agree on controlling their emissions, it is very likely that a global agreement will easily follow. Here I will propose a precise mechanism for implementing an agreement. It is based upon the premise that there is a salient focal point in the bargaining that must take place between these countries.

2. the focal point Imagine that China, the United States, the European Union, and the BRIC countries have called a meeting to hammer out an agreement to control the emission of GHGs. I propose that the focal point of the negotiations will emerge as follows. There is an obvious counterfactual to coming to such an agreement: namely, that all countries continue with “business as usual” (BAU). (The terminology BAU was popularized in the Stern report.) Suppose, under BAU – that is, if GHG emissions were a nonissue – China would converge to the United States in GDP per capita in seventy-five years. (Similarly, it would converge to the EU in GDP per capita in, let’s say, in sixty-five years.) I propose that the agreement to restrict GHG emissions, and hence reduce growth rates, should maintain these dates of convergence. For imagine what would occur if an agreement were made in which it could be computed that China would converge to the United States in ninety years: then China would say, “U.S., you are being advantaged by this agreement. For under BAU, we would have caught up to you fifteen years earlier.” And conversely, if the agreement entailed U.S.-China convergence in fifty years, the United States would raise a similar objection. So the only agreements that are stable, or acceptable, are ones that maintain the dates of convergence of the developing countries to the advanced countries. (Perhaps not all developing countries will converge to the United States in the imaginable future; it is likely, however, that China will.) Here is another interpretation of this claim. It may not be that the date of convergence is a focal point for the negotiators themselves, but rather that it is an easy way of explaining the agreement to the citizens (polities) of the respective countries. The negotiators can explain to their polities that the agreement preserves the dates of convergence, and that it would be unfair (and therefore unacceptable) for the dates of convergence to be advanced for (let us say) China and the United States because of the common problem that they face. This is a version of the “audience cost” problem. Each negotiator of an advanced country can argue that it would be unacceptable to its polity for the date of convergence with the global south to be advanced, and each negotiator for a developing country can argue that it would be unacceptable to its polity for the date of convergence to be delayed3. This rationale can be considered an argument for accepting the invariance of the date of convergence. 3

I thank Robert Keohane for this point.

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Now it is not easy to compute what those dates of convergence would be under BAU. But one does not have to do that. Just notice that what has to be maintained in the agreement are the relative growth factors of the advanced and developing countries. Suppose, under BAU, China’s GDP per capita were to grow at a rate of gCh per annum, and the U.S.’s at the rate of gUS per annum. Suppose the current GDPs per capita of the two countries are YUS and YCh. Then the date of convergence is given by the solution, T, of this equation: ! "T 1 þ gCh Y Ch ¼1 ð1Þ T US ð1 þ gUS Þ Y where (1 + g) is the growth factor of the country. Now suppose both growth factors are multiplied by the same number r; then the date of convergence is the solution of: #! "$T Ch =r 1 þ gCh Y # $T US ¼ 1 US Y =rð1 þ g Þ

ð2Þ

But as I have indicated, the factor r cancels, so the solution of equation (2) is the same as the solution of (1). The same result holds even if the growth factors for the two countries change from year to year. The principle is simple: if the growth factors of all countries are reduced or increased by the same factor, then dates of convergence will remain the same as before. More specifically, the ratios of GDPs per capita across countries at any date will all remain the same as they would have been under BAU. What’s key here is that the growth factors, not the growth rates, be multiplied by the same factor. Cutting back the growth factor by a given fraction is obviously not the same thing as cutting back the growth rate by a given fraction. Indeed, cutting back growth factors by the same fraction implies that faster growing countries will cut back their growth rates by smaller fractions than slower growing countries. As an illustration, suppose the growth factor of China is 1.09 per annum, and that of the United States is 1.03 per annum. Cutting both factors back by 0.5 percent will entail growth factors of 1.0846 and 1.0249 for the two countries, implying that the growth rates for China and the United States have been cut back by about 6 percent and 17 percent, respectively. I envisage the major countries’ meeting fairly frequently – perhaps every five years – to arrange the emissions allocated to each country for the coming period. At such a meeting, the growth rates (and factors) during the preceding period are public information. If reasonable projections of the growth factors can be agreed upon for the coming period, and there is an agreed-upon conception of what business – as-usual entails, then I propose that negotiations will take as their premise the goal that these growth factors all be reduced by the same fraction. I next discuss how to compute the solution to this problem, which will preserve the desired level of atmospheric concentration of GHGs.

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3. the gdp – emissions schedule For simplicity of exposition, suppose now that there are two countries in the negotiation – call them China and the United States. Exactly the same principles will apply for a larger number of participants. Realistically, the participants might be the U.S., China, the EU, and the BRICs. But for purposes of exposition, I will describe the process for two countries. I suppose that both countries possess an abatement technology: GHG emissions can be reduced by sacrificing part of the national product, to be used to install carbon scrubs, carbon capture, and so on. Thus, given current knowledge, there is a schedule J

Y J ¼ G 0 ðeÞ=n J for each country J, which defines the net GDP per capita, Y J, that the country can realize if it abates its total emissions to a level of e (measured, say, in tons of CO2 J per annum). Here, n J is the population of country J, and G0 gives the total GDP J of country J with the date 0 technology. The function G0 is an increasing J function, and G0 ð0Þ ¼ 0. In addition, we may suppose that countries can invest not only in scrubbing and so on, but in research and development of better abatement technologies. Thus, the whole schedule GJ0 can be increased with such investment. If a country J invests b J total in research and development, then let us write its total GDP as G J (e,b J) and its net GDP per capita as follows:4 Y J ðe;b J Þ ¼

G J ðe;b J Þ % b J nJ

ð3Þ

The cost of the investment must be subtracted from the net GDP. The function G J is increasing in both its arguments. Obviously, we would like a procedure that encourages countries to make investments in research and development of abatement technology. In what follows I separate the problem into two parts: (1) how to decide upon what the emissions of the two countries should be, given the agreements made on the investments (b J), and (2) how to come to agreement on what the investments {b J} should be. Eventually, I will show that the countries will determine the four numbers (eUS, bUS, eCh, bCh) simultaneously, in a single round of negotiation, so to speak. But conceptually, it may be useful to contemplate the problem as posed in two steps. Step 1. Allocating emissions once (b J) have been decided upon In Figure 3.1, the curve of equation (3) for the United States is plotted in the (e,Y) plane in the first quadrant. The numbers bUS and bCh are, by hypothesis, fixed. Note that YUS (GDP per capita) reaches zero at a positive value of e, 4

Hence, GJ0 ðeÞ

GJ ðe; 0Þ.

How Countries Can Negotiate to Allocate Greenhouse-Gas Emissions

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The solution is indicated by the point (eUS,eCh) in quadrant IV. The heavy dashed line gives a geometric determination of this point. In order to satisfy equations (3), (4), and (5), the ratio A/B must equal the ratio A0 /B0 . One can uniquely construct a heavy dashed line with this property.

4. determining investments in carbon-reducing r&d Step 2. Determining the investments bCh and bUS One might at first think that determining the investments bCh and bUS would be a difficult problem, involving strategic interaction between the two countries, and hence that one must resort to an incentive-compatible mechanism for determining the investments. However, this turns out not to be the case. We assume only that the negotiator for each country wishes to maximize the GDP per capita of its country in the next period. Y Ch then equation (6) can be written as: Let ! ¼ BAU US YBAU

Y Ch ¼ !Y US

ð6Þ

Because of (6), maximizing Ych is exactly the same as maximizing YUS. So, as long as the countries have agreed on the principle of preserving the date of convergence (i.e., on equation [6]), then their interests are perfectly aligned with respect to the investment choices bCh and bUS. What they will agree upon is to maximize their joint output and divide it between them so (6) is satisfied. This maximizes the GDP per capita of both countries simultaneously subject to the total-emissions constraint, and constraint (6). To be explicit, suppose that in the period in question, the populations of the two countries are nJ. Then the problem is to choose (eCh, eUS, bCh, bUS) to max GCh ðeCh ;bCh Þ % bCh þ GUS ðeUS ;bUS Þ % bUS subj: to e& ≥ eCh þ eUS :

program (P1Þ

Let the total GDP at the solution to this program be M. Then M is partitioned between the two countries so that their GDPs per capita are in the correct proportion; thus (YUS,YCh) are the solution of these two equations: nUS Y US þ nCh Y Ch ¼ M Y Ch ¼ !Y US In words, (P1) maximizes the joint total GDP of China and the United States, subject to the global emissions constraint, and partitions it between them so that the ratio of per capita incomes, YCh/YUS, is consistent with maintaining the date of convergence of per capita incomes. In general, the solution (YCh/YUS) will

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involve a transfer between the countries. Probably what will happen is that China will export consumption commodities to the United States, and the United States will specialize in research and development of new technology, which can be viewed as inducing it to carry out the proper amount of investment b. Of course, these exports of goods in one direction and technological knowledge in the other will be balanced by changes in asset holdings; for example, the United States will finance importing Chinese commodities with Chinese purchase of U.S. Treasury bonds. The model in this chapter is described in real terms, not financial ones, but there would be financial asset exchanges (i.e., changes in property rights) that would be used to balance the trade. What’s important to note is that the agreement to maintain a fixed ratio in income per capita means that there are no inefficiencies – in the sense that both countries wish to maximize joint output. If we were to complexify the model by saying that investment in each country produced positive externalities for emissions control in the other country, through knowledge diffusion, this would be even more important. Maximization of joint output internalizes externalities. The solution of program (P1) is characterized by these equations: @GC ðeC ; bC Þ ¼1 @b

ð7Þ

@GUS ðeUS ; bUS Þ ¼1 @b

ð8Þ

@GCh @GUS ¼ US @e @eCh

ð9Þ

e& ¼ eUS þ eCh

ð10Þ

These comprise four equations in the four unknowns (eUS, bUS, eCh, bch). Equations (7) and (8) state that, at the emission levels (eCh,eUS) each country invests in R&D to the point that maximizes net GDP (i.e., G J–b J), and equation (9) says that the marginal GDP with respect to emissions must be equalized for the two countries. What the actual values of the variables at the optimum will be depends, of course, on the specification of the functions G J. I conclude this section with an example. Suppose that the total GDP functions are given by: &# ! "" % J G J ðe;bÞ ¼ kJ nJ b þ b e$ ; for J ¼ China; U.S: These are Cobb-Douglas functions in labor (nJ), investment, and emissions. J

Think of b as standing for the effective cumulative investment of research done in the past on emissions abatement. Since the United States has a more

How Countries Can Negotiate to Allocate Greenhouse-Gas Emissions US

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Ch

advanced technology than China, it follows that b > b ; kJ stands for the contribution of the (fixed) capital stock to output. Then one can compute that the solution to the program implies: eUS GUS ¼ eCh GCh

ð11Þ

or more precisely: US

b

þ bUS

GUS

¼# ¼

b

Ch

þ bCh

GCh

ð12Þ

Equation (11) says that in the solution, emissions are proportional to gross GDP for each country, and (12) says that total “effective” investment (from the past and present) in R&D is proportional to GDP as well. I must emphasize that the results of this simple example may not hold if we examine a more complex model of the economies in question. Indeed, Llavador, Roemer, and Silvestre (in press) study an intergenerational model containing models of the Chinese and U.S. economies in which there are three sectors (commodities, R&D, and education), and compute (optimal) paths that engender convergence of Chinese and U.S. GDP per capita in seventy-five years (three generations). The emissions allocated to each country emerge endogenously as part of the solution of the optimization problem, as do the transfers between the countries. The results are not what one would predict from the simple example provided earlier.

5. discussion What information must be available to carry out these negotiations? At each negotiation, the countries must be able to agree upon: (1) the projected values of GDP per capita under the BAU scenario in the coming period; and (2) the functions GJ – that is, the relationship between emissions, investment, and output – for the two countries in the coming period. Perhaps this is not too much to ask. It might be objected that the model is too simple: to wit, the countries are really involved in a multi-period negotiating process, and one should take account of the fact that it is understood that what is agreed upon today will set the initial conditions for negotiations in the next period. It is perhaps worthwhile to generalize the model to reflect this, but I am doubtful whether, in reality, such a generalization is important. Uncertainty about the situation surrounding future negotiations may be so great, and the problems of the present so pressing, that negotiators may not think ahead (five or ten years) as so-called rational

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agents would. (This, too, is an Elsterian point.) And as far as practicality is concerned, there is a value to keeping the recommendation simple. One generalization, however, that would be worth introducing is the spillover effect of investment. In the model here, the investments bJ are private goods, but in reality, knowledge is a public good, and it can be shared among the various countries. The incentives to share knowledge of abatement exist here, because each country wishes to maximize total output of the two together. One might object that maximizing joint output and then distributing it through trade to maintain the ratios of GDPs per capita between pairs of countries ignores the political costs of building up trade deficits or surpluses. Indeed, if there are such costs, one can append to program (P1) constraints restricting the sizes of commodity transfers that are acceptable. One then does not achieve the so-called first-best solution, but one preserves the principle of maintaining dates of convergence. How would one generalize the recommendation to negotiations among several regions of the world – perhaps China, the United States, Europe, and the other BRIC countries? The formulae derived here immediately generalize to the multi-country situation: the ratios of net GDP per capita should equal the ratios of GDP per capita under BAU. This is assuming that the maintaining of the dates of convergence of the developing countries in question to the advanced countries is the salient focal point. For countries that have suffered from very low growth, one might well call for a subsidy, in the sense of allowing them to grow faster (relative to the others) than under BAU. However, for the major players – those enumerated – I believe the focal point defined here is probably the salient one. References Elster, Jon. 2007. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences. New York: Cambridge University Press. Elster, Jon. 2009. “Excessive Ambitions,” Capitalism and Society 4, no. 2: 1 30. Berkeley Electronic Press. Llavador, H., J. Roemer, and J. Silvestre. I, in press. Sustainability for a Warming Planet. Cambridge, MA: Harvard University Press. Stern, N. 2006. The Economics of Climate Change: The Stern Report. New York: Cambridge University Press.

4 On Irreversible Harm (with Special Reference to Climate Change) Cass R. Sunstein*

For about a decade during the 1980s and 1990s, I was privileged to have Jon Elster as a colleague, mentor, and friend. I learned so much from Jon – about the need for both psychology and economics, about rhetoric (with respect to the most recent fad, he would ask, with some combination of mischief and curiosity, “Is it analysis, or is it rhetoric?”), about standards (“You shouldn’t publish this,” he said more than once, and though I did publish that, he was undoubtedly right), about rationality (of course), about avoiding the high-flown, about the optimal level of open-mindedness, about earning a conclusion. It goes without saying that Jon is among the very few most important, and interesting, social theorists of our time. And what can be said about Jon can be said about almost no one else: you learn from every page. Jon also has quiet joy about him. His delight in a formulation or an insight is infectious. In writing and in person, he spills out gems. Just one example: “To demand of a politician that he accord large weight to the welfare of later generations and/or to the welfare of other countries, is rather like asking him to commit suicide.”1 The opportunity to be Jon’s colleague and friend, during those wonderful days in Chicago, counts as one of the most significant, joyful, and best experiences of my professional life. Here’s one way to put it. Those who have a chance to work closely with Jon, or even to read him carefully, are not the same. They’re much better. But Jon is not exactly sentimental, and I fear that if I go on about him, I will do some irreversible damage. Which brings me to the present topic. * In September 2009, the author, Felix Frankfurter, professor of law at Harvard Law School, was confirmed as administrator of the White House Office on Information and Regulatory Affairs. No work has been done on this chapter since that time. The positions expressed here do not in any way reflect the position of the U.S. government. 1 Elster, “Risk, Uncertainty, and Nuclear Power,” 393.

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1. introduction Many social problems have an element of irreversibility. If a species is lost, it is probably lost forever; the same might well be true of pristine areas. Genetically modified organisms might lead to irreversible ecological harm; transgenic crops can impose irreversible losses by increasing pest resistance.2 In the context of environmental protection, irreversibility is a pervasive concern; risks are frequently uncertain, and if precautionary steps are not taken, a growing problem might plausibly be characterized as irreversible. In recent decades, the problem of climate change has raised the most serious concerns about irreversibility. Some greenhouse gases stay in the atmosphere for centuries, and for that reason climate change threatens to be irreversible, at least for all practical purposes.3 In a brief but characteristically trenchant discussion, Jon Elster raised this point in the 1970s, with particular reference to the environmental effects of carbon dioxide emissions.4 Elster distinguishes between two forms of irreversibility: the strong and the weak. He begins by emphasizing the importance of “a frontier, the value of some variable above which there are disastrous environmental or social effects.” The strong form “obtains if (i) one can only know where the frontier is by hitting it, and (ii) it is impossible to back up from it when you hit it.”5 The weak form occurs when condition (ii) is satisfied but not condition (i). Distinguishing carbon dioxide emissions from nuclear war, Elster urges that the latter is strongly irreversible but the former does “not seem to be.” Elster emphasizes that we might seek to postpone an irreversible decision if, by postponing it, we will obtain better information. While carbon dioxide emissions were not Elster’s principal concern, the risk of irreversibility is especially troublesome in light of massive uncertainty about the actual damage from climate change. Thirty years after he referred to the problem of carbon dioxide emissions, it is not clear whether he was right to suggest that we are in the domain of weak form irreversibility. Once we hit the frontier, we will probably be unable to back up. But we are learning more about where the frontier is, and it remains uncertain whether we will know where it is before we hit it. It is possible, in fact, that we have hit it already and that we do not know it. Suppose, for purposes of illustration, that we project warming between 1.8° and 4.0°C by 2100. (The International Panel on Climate Change made this projection in one of its reports,6 though scientific judgments continue to 2

3 4 5 6

See generally Morel et al., “Pesticide Resistance, the Precautionary Principle, and the Regulation of Bt Corn” (proposing option theory as an analytical framework for the precautionary principle and applying that framework to the issue of commercializing Bt corn); Wesseler, “Resistance Economics of Transgenic Crops under Uncertainty” (discussing pest resistance as an irreversible cost of transgenic crops). See Montgomery and Smith, “Global Climate Change and the Precautionary Principle.” See Elster, “Risk, Uncertainty, and Nuclear Power,” 392. Ibid. See Nordhaus, A Question of Balance.

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change.) There is a large difference between adverse effects at 1.8°C and adverse effects at 4.0°C. Even at a specified increase in temperature, it is exceedingly difficult to know the extent of the harm. Suppose that the average global temperature increases by 3.75°C one hundred years from now. If so, we might be at the frontier. The extent of the likely damage is disputed, in part because of uncertainty about the possibility of adaptation, in part because of uncertainty about the resulting effects on global conditions. There is some risk of catastrophe, and once that risk is incorporated into the analysis, the assessment of what to do changes dramatically. Aggressive measures, in the form of emissions reductions or adaptation, might be justified in order to maintain flexibility in the event that either warming or actual damage turns out to be at the higher end of the range. The problem of climate change is especially important, but for present purposes, it should be taken as merely exemplary. Many public health problems, including those involving contagious diseases, involve probabilistic harms and an apparent danger of irreversibility. It is tempting to think that even if a harm is merely speculative, it makes sense to take aggressive precautionary measures, on the intuitive ground that an ounce of prevention is worth a pound of cure. Concerned about irreversibility in its strong or weak form, sensible nations might consider adopting a distinctive (if admittedly vague) principle for handling risks in many domains: the irreversible harm precautionary principle.7 Indeed, some such principle seems to underlie prominent accounts of the precautionary principle,8 which point explicitly to the problem of irreversibility. For example, the United Nations Framework Convention on Climate Change proclaims: “Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing [regulatory] measures, taking into account that policies and measures to deal with climate change should be costeffective so as to ensure global benefits at the lowest possible cost.”9 Similarly, the 1992 Rio Declaration states, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”10 In American law, related ideas are at work in the domains of environmental protection. San Francisco has adopted its own precautionary principle, with an emphasis on irreversibility: “Where threats of serious or irreversible damage to people or nature exist, lack of full scientific certainty about cause and effect shall not be viewed as sufficient reason for the City to postpone cost effective measures to prevent the degradation of the environment or protect the health of its citizens.”11 At the federal level, the National Environmental Policy Act requires

7

8 9 10 11

See Farrow, “Using Risk Assessment, Benefit Cost Analysis, and Real Options to Implement a Precautionary Principle,” 727 728. On that principle, see Goklany, The Precautionary Principle, 6. See Goklany, The Precautionary Principle. Quoted in Lomborg, The Skeptical Environmentalist, 347. See San Francisco Precautionary Principle Ordinance.

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agencies to discuss “any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”12 Courts have been careful to insist that environmental impact statements should be prepared at a time that permits consideration of environmental effects before irretrievable commitments have been made.13 A number of other federal statutes, especially in the context of public health and the environment, specifically refer to irreversible losses and make their prevention a high priority.14 Within the federal courts, a special precautionary principle underlies the analysis of preliminary injunctions in cases involving a risk of irreparable environmental harm.15 For those who emphasize irreversibility, the general attitude in the face of uncertainty is “act, then learn,” as opposed to the tempting and often sensible alternative of “wait and learn.” For many public health problems, including those involving contagious diseases, some people believe that research should be our first line of defense. In the context of climate change, it is sometimes suggested that nations should refuse to commit substantial resources to reducing greenhouse gas emissions or to adaptation until evidence of serious harm is clearer than it now is. To be sure, this view seems to have fewer adherents every year. But some reasonable people believe that our initial steps should be relatively cautious, increasing in aggressiveness as knowledge accumulates (and the costs of emissions reductions fall). In this domain, however, there is a problem with any approach of “wait and learn.” If strong precautionary steps are not taken immediately, the results may be irreversible, or at best difficult and expensive to reverse. For climate change, it might be best to act aggressively now as a way of preserving flexibility for future generations. My goal in this chapter is to explore the idea of irreversibility in the domain of environmental protection, with particular reference to climate change. In one sense, the idea of irreversibility seems unhelpful, at least in its ordinary language sense: all losses are irreversible, simply because of the march of time. If Jones plays tennis this afternoon, rather than working, the relevant time is lost forever. If a project to drill oil in Alaska is delayed for five years, there is an irreversible loss as well: the oil that might have been made available will not be made available when it otherwise would have been. When people emphasize the importance of irreversibility, I suggest that they are best taken as having two separate conceptions in mind.

12 13

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42 USC 102 (c)(5). See Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000); Scientists Inst. for Public Info v. AEC, 481 F.2d 1079 (DC Cir. 1973); Sierra Club v. Marsh, 976 F.2d 763 (1st Cir. 1985). See, e.g., 33 USC 2712(j) (making special exception to planning requirement for use of federal resources in a situation requiring action to avoid irreversible loss of natural resources”); 42 USC 9611 (i) (same exception for Superfund cleanups); 22 USC 2151p 1 (c)(2)(A) (requiring the president to assist developing countries in a way that responds to “the irreversible losses asso ciated with forest destruction”). See Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989).

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The first, in line with Elster’s discussion, is connected with the idea of option value. In particular, it begins with the suggestion that when information is missing, it is worthwhile to spend resources to maintain future flexibility as knowledge increases. Irreversibility, in this sense, comes in various shapes and sizes, and it needs to be taken into account in a sensible cost-benefit analysis. In the context of environmental protection, this kind of irreversibility is important to consider. A key point here is that environmental problems, including climate change, typically involve not irreversibility but irreversibilities: Expenditures on such problems may turn out to be irreversible as well, and hence it is necessary to know something about the nature and magnitude of the irreversibilities on both sides. In many contexts, however, an understanding of irreversibility will justify more aggressive precautions than would be indicated if the damage were reversible. The second conception, drawn from influential critiques of utilitarianism in general, emphasizes losses of goods that are incommensurable, not in the sense that they are infinitely valuable, but in the sense that they are qualitatively distinctive and in some cases unique. One idea here is that certain amenities – like a friendship, a photograph album, an aspect of culture, or a historic site – are not fungible with their monetary equivalent. When they are lost, something unique is lost. It is not replaceable. When people fear or deplore certain losses, this kind of irreversibility is often their animating concern. Economists and economic analysts of law often find this idea puzzling and opaque, in part because it is outside the scope of neoclassical (or behavioral) economics, and because it does not offer any guidance for how to assess the costs and benefits of social harms. While the first conception calls for a kind of “irreversibility premium,” embodied in a willingness to spend more on precautions or preparation, the second does not suggest any particular approach. It does, however, insist on a certain way of thinking about many problems, emphatically including climate change. I suggest that economic analysts will be unable to understand important debates, in politics, in law, and in ethics, unless they have a sympathetic appreciation of the second conception of irreversibility. Indeed, I suggest that economic analysis of some public health and environmental problems is, in an important sense, obtuse, if it fails to appreciate the animating concern.

2. uses, options, and irreversibility: existence value, option value Elster writes, “Expected value may not be the best maximand when irreversibilities are present, as they often are in the energy choice.”16 What might this mean?

16

Elster, “Risk, Uncertainty, and Nuclear Power,” 391.

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Let us begin with the monetary valuation of a social good, such as a pristine area. Some people will be willing to pay to use the area; they may visit it on a regular basis, and they might be very upset at its loss. But others will be willing to pay to preserve it, even if they will not use it. In fact, many citizens would be happy to give some money to save a pristine area, perhaps especially if animals can be found there. Hence “existence value” is sometimes included in the valuation of environmental goods,17 and indeed federal courts have insisted that agencies pay attention to that value in assessing damages to natural resources.18 Taken as a group, citizens of many nations would be willing to pay a great deal to preserve an endangered species or to maintain the existence of a remote island and its ecosystem. In fact, valuation of the damage from climate change must pay attention to the loss of species and animals, if only because human beings care about them. But some people are also willing to pay for the option to use or to benefit from an environmental amenity in the future, even if they are unsure whether they will exercise that option at any time.19 Suppose that a pristine area might be developed in a way that ensures its permanent loss. Many people would be willing to pay a significant amount to preserve their option to visit that area. Under federal law, option value must also be considered in the assessment of natural resource damages.20 Many regulations pay attention to option value in the environmental context.21 In the domain of public health, the importance of option value should be clear. For numerous goods, people are willing to pay and to do a great deal in order to ensure that their options are preserved. The phenomenon of precommitment, central to Elster’s work, is accompanied by that of option-preservation, in the form of willingness to do and pay a great deal not to foreclose future paths. Here, then, is a simple sense in which irreversible harm causes a loss that should be considered and that must be included in measures of value. Some skeptics contend that it “is hard to imagine a price for an irreversible loss,”22 but people certainly do identify prices for such losses, or at least for the risk of such

17

18 19

20 21

22

See Cicchetti and Wilde, “Uniqueness, Irreversibility, and the Theory of Nonuse Values,” 1121 1122. See Ohio v. U.S. Dep’t of the Interior, 880 F.2d 432, 464 (DC Cir. 1989). Cicchetti and Wilde, “Uniqueness, Irreversibility, and the Theory of Nonuse Values”, 1122 (noting Weisbrod’s analogy of such amenities to public goods, in that “individuals who may never purchase the commodity still hold a value for the option to do so”). The independent use of option value is, however, challenged in various places. See, e.g., Myrick Freeman III, “The Measurement of Environmental and Resource Values,” 249 251 (suggesting that “what has been called an option value is really just the algebraic difference between the expected values of two different points on a WTP [willingness to pay] locus”). See Ohio v. U.S. Dep’t of the Interior, 880 F.2d 432, 464 (DC Cir. 1989). See, e.g., 60 Fed. Reg. 29914 (1995); 60 Fed. Reg. 28210, 29914, 29928 (1995); 59 Fed. Reg. 1062, 1078 (1994). But see 69 Fed. Reg. 68444 (2004) (doubting whether option value should be recognized as separate from others values). See Ackerman and Heinzerling, Priceless, 185.

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losses. Whether or not we turn that value into some sort of monetary equivalent, or deem willingness to pay to be determinative, it ought to matter. The idea of option value, as used in the monetary valuation literature just discussed, is closely related to the use of the notion of “options” in the domain that I shall be emphasizing here. The simple claim is that when regulators are dealing with an irreversible loss, and when they are uncertain about the timing, magnitude, and likelihood of that loss, they should be willing to pay a sum – the option value – in order to maintain flexibility for the future. The option might not be exercised if it turns out that the loss is not a serious one. But if the option is purchased, regulators will be in a position to forestall that loss if it turns out to be large. The concern about irreversibility, and hence an irreversible harm precautionary principle, is based on the idea that regulators should be willing to buy an option to maintain their own flexibility. In the domain of finance, options take multiple forms.23 An investor might be willing to purchase land that is known to have deposits of gold. Even if the cost of extraction is too high to justify mining, ownership of the land creates an option to mine if the cost falls.24 A standard “call option” is a right to purchase an asset prior to a specific date at a specified price.25 (People might pay for the right to buy a share of stock in their favorite company at $50, six months from now.) In another variation, people might seek the right to abandon a project at a fixed price, perhaps on the occurrence of a specified worst-case scenario. (People might agree to perform some service for someone, but obtain the right not to perform in the event of bad weather, bad health, or some other contingency.) Alternatively, people might obtain the right to scale back a project, to expand it, or to extend its life. In another variation, people might seek the right to abandon a project at a fixed price, perhaps on the occurrence of a specified set of events. They might instead obtain the right to scale back a project, to expand it, or to extend its life. Options that recognize multiple sources of uncertainty, of the sort that can be found for climate change, are termed “rainbow options.”26 Option theory has countless applications outside of the domain of investments. People would be willing to do and possibly even to spend a great deal to preserve their option to have another child – even if they are not at all sure that they really want to have another child. Or consider narrow judicial rulings, of the sort celebrated by judicial minimalists, who want courts to make decisions that are focused on particular details and that leave many questions undecided. Narrow rulings can be understood as a way of “buying” an option, or at least of “paying” a certain amount by imposing decision-making burdens on others, in return for future flexibility. Judges who leave things undecided, and who focus their rulings on the facts of particular cases, are in a sense forcing themselves, 23 24 25 26

See Copeland and Antikarocov, Real Options, 8 13. See Brealey and Myers, Principles of Corporate Finance, 565. Brealey and Myers, Principles of Corporate Finance, 582. Copeland and Antikarocov, Real Options, 13.

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and society as a whole, to purchase an option to pay for flexibility in the resolution of subsequent problems. Whether that option is worthwhile depends on its price and the benefits that it provides. Or consider the case of marriage and suppose that because of law or social norms, it is difficult to divorce, so that a decision to marry cannot readily be reversed. If so, prospective spouses might be willing to do a great deal to maintain their flexibility before marrying – far more than they would be willing to do if divorce were much easier. It should be readily apparent how an understanding of option value might explain the emphasis, in the National Environmental Policy Act (NEPA) and other statutes involving public health and the environment, on irreversible losses. The central point of NEPA is to ensure that government officials give serious consideration to environmental factors before they take action that might threaten the environment. If the government is building a road through a pristine area, drilling in Alaska, or licensing a nuclear power plant, it must produce an “environmental impact statement” discussing the environmental effects. The production of these statements can be burdensome and costly. But when potentially irreversible losses are involved, and when officials cannot specify the magnitude or likelihood of such losses, the public, and those involved in making the ultimate decision, ought to know about them. So too in the domain of public health. If a risk – of, for example, some new form of flu – is highly speculative, we might nonetheless take precautions in order to preserve flexibility for the future. The special concern about overuse of antibiotics, in increasing resistance, involves the same concern.

3. options, imperfect knowledge, and precautions It should now be clear that the idea of option value might help support an irreversible harm precautionary principle. The most influential essay was written by Kenneth Arrow and Anthony Fisher, who demonstrate that the ideas of uncertainty and irreversibility have considerable importance to many domains.27 Arrow and Fisher imagine that the question is whether to preserve a virgin redwood forest for wilderness recreation or instead to open it to clear-cut logging. Assume that if the development option is chosen, the destruction of the forest is effectively irreversible. Arrow and Fisher argue that it matters whether the authorities cannot yet assess the costs or benefits of a proposed development. If development produces “some irreversible transformation of the environment, hence a loss in perpetuity of the benefits from preservation,” then it is worth paying something to wait to acquire the missing information. Their suggestion is that “the expected benefits of an irreversible decision should be adjusted to reflect the loss of options it entails.”28

27 28

See Arrow and Fisher, “Environmental Preservation, Uncertainty, and Irreversibility,” 312 314. Arrow and Fisher, “Environmental Preservation, Uncertainty, and Irreversibility,” 319.

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Fisher has generalized this argument to suggest that “[w]here a decision problem is characterized by (1) uncertainty about future costs and benefits of the alternatives, (2) prospects for resolving or reducing the uncertainty with the passage of time, and (3) irreversibility of one or more of the alternatives, an extra value, an option value, properly attaches to the reversible alternative(s).”29 The intuition here is both straightforward and appealing: more steps should be taken to prevent harms that are effectively final than to prevent those that can be reversed at some cost. If an irreversible harm is on one side and a reversible one on the other, and if decision makers are uncertain30 about future costs and benefits of precautions, an understanding of option value suggests that it is worthwhile to spend a certain amount to preserve future flexibility, by paying a premium to avoid the irreversible harm. Judge Richard Posner has invoked a point of this sort as a justification for aggressive steps to combat climate change.31 Posner acknowledges that the size of the threat of climate change is disputed, and hence it is tempting to wait to regulate, or to wait to regulate aggressively, until we have more information. But there is a serious problem with waiting, which is “the practically irreversible effect of greenhouse-gas emissions on the atmospheric concentration of those gases.”32 Thus Posner reasons that “[m]aking shallower cuts now can be thought of as purchasing an option to enable global warming to be stopped or slowed at some future time at a lower cost.”33 The reduction in cost, as a result of current steps, could result from lowering current emissions or simply from increasing the rate of technological innovations that make pollution reduction less costly in the future. Posner concludes that the option approach makes sense for other catastrophic risks as well, including those associated with genetically modified crops. Recall the possibility that overuse of antibiotics can increase resistance, in a way that also eliminates a kind of option value. The general point here is that, as in the stock market, those involved in promoting public health and environmental protection are trying to project a stream of good and bad effects over time; the ability to project the stream of effects will improve and hence much can be gained from being able to make the

29 30

31

32 33

See Fisher, “Uncertainty, Irreversibility, and the Timing of Climate Policy,” 9. I use the word “uncertain” to refer to both risk and uncertainty. “Risk” exists when it is possible to assign probabilities to various outcomes; “uncertainty” exists when no probabilities can be assigned. For the seminal discussion, which has prompted a heated debate, see Knight, Risk, Uncertainty, and Profit. For a nontechnical overview, see Elster, Explaining Technical Change, 185 207. See Posner, Catastrophe, 161 162. A more technical discussion to the same effect is contained in Chichilnisky and Heal, “Global Environmental Risks” (65, 76). These authors emphasize the need for a distinctive approach to “risks that are poorly understood, endogenous, collective, and irreversible” (67). See also their more detailed treatment of option value and irreversibility (76 84). Posner, Catastrophe, 161 162. Ibid., 162.

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decision later in time rather than earlier. If better decisions can be made in the future, then there is a value to putting the decision off to a later date. The key point is that uncertainty and irreversibility should lead to a sequential decisionmaking process. If better information will emerge, regulators might seek an approach that preserves greater flexibility, at least if that approach is not too costly. The extent of the appropriate “irreversibility premium” depends on the details.

4. seriousness and sunk costs Even under this account, the idea of irreversibility is not without ambiguity. Elster rightly distinguishes between strong and weak forms. Let us consider another distinction, involving his idea of a “frontier.” Under the first, an effect is irreversible when restoration to the status quo, below the frontier, is impossible or at best extremely difficult, at least on a relevant timescale. For example, the “decision not to preserve a rich reservoir of biodiversity such as the 60 million-year-old Korup forest in Nigeria is irreversible. The alteration or destruction of a unique asset of this type has an awesome finality.”34 If this is the appropriate interpretation of irreversibility, then it is an aspect of seriousness. A second interpretation, standard in the economic literature on options, sees irreversibility not in terms of going beyond a frontier, but in terms of sunk costs. The two interpretations lead to different understandings of the problem of irreversibility and the irreversible harm precautionary principle.

5. irreversibility and seriousness Under the first interpretation, the initial question is whether a clear line separates the reversible from the irreversible. Perhaps we have a continuum, not a dichotomy. The question is not whether some effect can be reversed, but instead at what cost. Areas that have been developed or otherwise harmed can often be returned to their original state, even if at considerable expense. Even lost forests can be restored. If a public health problem causes illness but not death, then people can ultimately be saved. Perhaps technologies can and will be developed to deal with greenhouse gas emissions. Even if such emissions exceed a level of “no return,” perhaps a return will be possible because of innovations that remove them or that otherwise provide protection; the point may apply to climate change. But sometimes the cost of reversal is high, even prohibitive, and sometimes restoration is literally impossible. Consider in this regard the mortality effects of certain hazards. If air pollution would kill 200 people a year, or if climate change would produce tens of thousands of deaths in India, those losses cannot be recovered. An illness might be reversible, thus preventing death, but the illness 34

See Chichilnisky and Heal, “Global Environmental Risks,” 65, 76.

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itself will have occurred. Even biological changes in the human body may not be reversible (whether or not they are associated with immediate or long-term harm). Some kinds of air pollution induce changes that endure for decades. In all of these cases, irreversibility is simply an aspect of seriousness. If 200 people will die from certain levels of pollution, the harm is more serious than if 200 people would merely get sick. If air pollution induces biological changes, everything depends on the magnitude of the harm associated with those changes. At first glance, these points underline the mundane point that permanent or long-term harms are more serious than short-term harms. If a social problem cannot be reversed at all, we should take more aggressive precautions than we would if it can be reversed only at great expense, monetary or otherwise – and if it can be reversed only at great expense, we would take more precautions than we would if it would be easy to reverse it. But there is a larger conceptual point here. Any death, of any living creature, is irreversible, and what is true for living creatures is true for rocks and refrigerators too; if these are destroyed, they are destroyed forever. And because of the flow of time, every decision is, in an intelligible sense, irreversible. If a couple goes on vacation in Greece in July of a certain year, that decision cannot be reversed, and what else might have been done at that time will have been permanently lost. Even if divorce is easy, a marriage is irreversible in the sense that no matter what happens, people will have been married for the relevant period. If government builds a new highway in upstate New York in May, that particular decision will be irreversible; nothing else will be done with that land in May, even though the highway can be later replaced or eliminated. This is the sense in which “irreversibility” depends on how the underlying act is characterized. If we characterize it narrowly, to be and to do precisely what it is and does in terms of time and place, any act is irreversible by definition. Environmentalists who are concerned about irreversibility have something far more particular in mind. They mean a long-term alteration in environmental conditions – one that imposes permanent, or nearly permanent, changes in those conditions. Climate change is the most extreme example. But it should be clear that irreversibility in this sense is not a sufficient reason for a highly precautionary approach. At a minimum, the irreversible change has to be for the worse, and it must also rise to a certain level of magnitude. A truly modest change in the global temperature, even if permanent, would not justify expensive precautions if it is benign or if it imposes little in the way of harm. For this reason, it is tempting to understand the idea of irreversibility as inseparable from that of seriousness. A loss of a wisdom tooth is irreversible, but not a reason for particular precautions on behalf of wisdom teeth; a loss of an extremely small forest, with no wildlife, hardly justifies a special principle, even if that loss cannot be reversed. In the standard view, we should of course understand seriousness in terms of the magnitude and the likelihood of the harm. In the context of climate change, we might attempt to specify the bad outcomes and their probabilities; there is of

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course a large literature on that topic. Following Elster (and others), we might add that for some of the relevant risks, it might be argued that we are dealing with circumstances of uncertainty rather than risk, in the sense that we are not able to assign probabilities to various outcomes.35 Perhaps we cannot assign such probabilities to certain levels of greenhouse gas emissions; perhaps we cannot assign probabilities to the effects of various precautions. If so, we have to deal with the difficult question of whether to follow the maximin criterion, which asks us “to compare the worst-consequences and then choose the alternative with the best worst-consequences.”36 Some people favor this approach in the context of climate change, but it will run into serious objections if steps that avoid the worst worst-case scenarios simultaneously create a certainty, or a high probability, of very bad worst-case scenarios.37 However the hardest questions are resolved, irreversibility matters, on one view, only because of its connection with the magnitude of the harm; irreversibility operates as a kind of amplifier. In law, a comparison might be made with the idea that courts will refuse to issue a preliminary injunction unless the plaintiff can show that there is a likelihood of an “irreparable harm” if the injunction is not granted. Irreparability is not a sufficient condition for granting the injunction; the harm must be serious as well as irreparable. And if irreversibility is to be analyzed in the same way, then an irreversible harm precautionary principle is really part of a Catastrophic Harm Precautionary Principle. If so, the irreversible harm precautionary principle is important and should be taken into account, but it is not especially distinctive. The principle is also vulnerable, some of the time, to the same objections that apply to the precautionary principle as a whole: as we shall shortly see, significant and even irreversible harms may well be on all sides of risk-related problems, and a focus on one set of risks will give rise to others.38

6. lost amenities, sunk costs, and imperfect knowledge In line with Elster’s discussion, analysts of irreversibility and options understand the idea of irreversibility in a different way.39 Irreversible investments are sunk costs – those that cannot be recovered. Examples include expenditures on advertising and marketing, and even capital investments designed to improve

35 36 37 38 39

See Elster, “Risk, Uncertainty, and Nuclear Power.” Ibid., 389. See Sunstein, Worst Case Scenarios. On this problem, see Sunstein, Laws of Fear. See Dixit and Pindyck, Investment under Uncertainty, 6: “When a firm makes an irreversible investment expenditure, it exercises, or ‘kills,’ its option to invest. It gives up the possibility of waiting for new information to arrive that might affect the desirability or timing of the expenditure, and this lost option value is an opportunity cost that must be included as part of the investment.”

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the performance of a factory. In fact, the purchase of motor vehicles, computers, and office equipment is not fully reversible because the purchase cost is usually significantly higher than resale value. Examples of reversible investments include the opening of bank accounts and the purchase of bonds. The problem with an investment that is irreversible is that those who make it relinquish “the possibility of waiting for new information that might affect the desirability or timing of the expenditure, and this lost option value is an opportunity cost that must be included as part of the investment.”40 This, in short, is the conception of irreversibility that I mean to emphasize here. Many people agree that we should characterize, as irreversible harms, adverse public health or environmental effects that are both serious and extremely expensive and time-consuming to reverse. This is the understanding that leads Posner and others to argue for the purchase of an “option” to slow down climate change at a lower rate in the future. Immediate adoption of a policy produces a “sunk benefit.” The argument is correct and important, but it neglects an important point: irreversibility, in the relevant sense, might well lie on all sides. Regulation that reduces one (irreversible) risk might well increase another such risk. Suppose, for example, that Efforts to reduce climate change and other dangers associated with fossil fuel use may lead to increased dependence on nuclear energy, which threatens to produce irreversible harms of its own. As with the precautionary principle in general, so with the irreversible harm precautionary principle in particular: measures that the principle requires, on grounds of safety and health, might turn out to be prohibited on exactly those grounds. And there is a more general point. If steps are taken to reduce greenhouse gas emissions, capital costs will be incurred, and they cannot be recouped. Sunk costs are a familiar feature of regulation, in the form of mandates that require technological change. We are often dealing, then, with irreversibilities, not irreversibility. For many public health and environmental problems, this point severely complicates the application of the irreversible harm precautionary principle. As Fisher writes for climate change, in the abstract, “it is not clear whether the conditions of the problem imply that investment in control ought to be slowed or reduced, while waiting for information needed to make a better decision, or that investment should come sooner to preserve the option to protect ourselves from impacts that may be revealed in the future as serious or even catastrophic.”41 It is for this reason that some observers have concluded, unlike Judge Posner, that the existence of uncertainty and irreversibility argue for less, not more, in a way of investments in reducing greenhouse gas emissions. Those investments may themselves turn out to be irreversible. For some public health problems, significant expenditures are sunk costs, and they may be substantial. Everything depends on the likelihood and magnitude of the losses on all sides.

40 41

Ibid., 6. Fisher, “Uncertainty, Irreversibility, and the Timing of Climate Policy,” 11.

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Nothing said here supports the increasingly implausible view that the right approach to climate change is adequately captured in the idea of wait and learn. That approach makes sense only if we lose very little when we defer investments while waiting to obtain more information about the benefits. But if a great deal is likely to be lost by deferring such investments, then the judgment should be reversed. There is good reason to believe that the irreversible losses associated with climate change do indeed justify the irreversible losses associated with greater investments in emissions reductions, worldwide. If irreversibility is defined in terms that point to the value of preserving flexibility for an uncertain future, it provides a distinctive and plausible understanding of the irreversible harm precautionary principle.

7. irreversibility and incommensurability The first conception of irreversibility misses something important. When people say that the loss of a pristine area or of a species is irreversible, they do not merely mean that the loss is grave and that it takes a great deal to provide adequate compensation. They mean that what is lost is incommensurable – that it is qualitatively distinctive, and that when we lose it, we may lose something that is unique. In his brief exploration of irreversibility, Elster does not refer to this point, and I am not at all sure that he would find it congenial. But it bears directly on many debates in environmental ethics, and it connects to a pervasive concern about irreversibility in connection with climate change. The central claims here are that human goods are diverse and that we do violence to our considered judgments about them when we line them up along a single metric. Suppose, for example, that a species of tigers or elephants is lost. The nature of the concern about lost species is not adequately captured in the idea of “option value.” Even if our exercise in monetization is unobjectionable, the species is not its economic equivalent. People do not value an endangered species in the same way that they value money; it is not as if a species, a beach, a friendship, or a child is indistinguishable from specified monetary sums. If we see species, beaches, friendships, and children as equivalent to one another, or as equal to some amount of money, we will have an odd and even unrecognizable understanding of all of these goods. When people object to the loss of a species or a beach, and contend that the loss is irreversible, they mean to point to its permanence, and to the fact that what has been lost is not valued in the same way or along the same metric as money. Return to the issue of climate change and note that on some estimates, a significant percentage of the world’s species will be lost as a result of warmer temperatures. On one view, what makes this loss “irreversible” is that something qualitatively unique, without real substitutes, will be gone permanently. It is also true that something can have incommensurable value even if its loss does not raise concerns about irreversibility. Recall the case of a photo album whose loss seems unique, but suppose that the negatives exist, and so the album

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can be recreated even if it is destroyed. In that event, the loss would not be irreversible in any interesting sense – but it remains the case that the value of the album is incommensurable with money. We could imagine cases in which amenities have incommensurable value, but in which their loss is not truly irreversible. Incommensurability is not a sufficient condition for irreversibility. But when many goods are lost and cannot be recovered, the special problem is that they are qualitatively distinctive or in an important respect unique; and that judgment underlies the desire to preserve them. Of course people are willing to make trade-offs among qualitatively diverse goods, and they do so all the time. We will pay a certain amount, and no more, to be able to protect members or an endangered species or to visit the beach, or to help preserve it in a pristine state; we will not pay an infinite sum to see our friends, or even to maintain our friendships; we will take some precautions, but not others, to reduce risks to ourselves and to our children. To say that a good is not fungible is not to say that it is infinitely valuable. Trade-offs will be made. What is gained by an understanding of incommensurability is a more vivid appreciation of why certain losses cannot be dismissed as mere “costs.” These points are closely connected with important claims in environmental ethics.42 On one view, “not everything is substitutable for everything else through the medium of utility. And a corollary of that fact is the further fact that some things are irreplaceable.”43 A wild and scenic river, for example, might be valued because of its origins and history; a restoration of that river, as for example through an artificial watercourse, would not provide an adequate substitute. This is not to say that an understanding of incommensurability points to any particular shift in cost-benefit analysis (though it helps to explain why the properly monetized benefits of species loss, or loss of pristine areas, may be very high). But it is to say that an effort to line up all relevant goods on a single metric will make it difficult to understand what is at stake in the domains and politics of law. In particular, many debates about climate change engage questions of incommensurability. Here too, however, it is important to see that precautionary steps may themselves impose incommensurable losses, not merely monetary ones. Recall, for example, that environmental protection of one sort may create environmental problems of another sort. The same is true for measures designed to protect public health more generally. If the diverse nature of social goods is to play a part in the implementations of an irreversible harm precautionary principle, it must attend to the fact that diverse goods may be on all sides. And here too there is no escaping at least implicit assignment of monetary values to those goods. To say that a social loss is not commensurate with money, in a moral sense, is not to say that human beings can avoid some form of monetization. The point is that in the domains of private choice and democratic judgment, any 42 43

For an illuminating discussion, see Goodin, Green Political Theory. Ibid., 60.

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monetary assignment should be undertaken with an understanding of the nature of the goods at stake. As I have emphasized, this point does not provide any lesson for how the important issue of how the assignment of monetary value should occur. But for those concerned about irreversibility in the relevant sense, that is not the only issue. We need to consider “how” goods are valued, not merely at “how much” goods are valued.

8. environmental injunctions In American law, an understanding of these points helps to explain some longstanding disputes about the issuance of preliminary injunctions in environmental cases. I investigate this somewhat narrow and technical problem here, with the hope that it will illuminate a number of questions about precautions in the face of irreversibility. For many years, some courts of appeals had held that when environmental harm was alleged, district courts should adopt a presumption of irreparable damage and indeed a presumption in favor of injunctive relief.44 On a widespread view, environmental harms are presumed to be irreparable and to provide an appropriate occasion for such relief.45 In NEPA cases, the result was a likely injunction if the agency had failed to prepare an adequate environmental impact statement: “Irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.”46 Apparently the idea is that if no environmental impact statement is provided, or if any such statement is inadequate, the risk to the environment is presumed to be irreparable, perhaps in the sense of irreversible. But what is the basis for this presumption? And what follows from it? Does it follow that injunctions will be issued in any case in which a private or public institution has failed to comply, even as a technical matter, with federal environmental law? Does it follow, for example, that the U.S. Navy must be enjoined from conducting weapons-training operations before it has obtained a permit to discharge ordnance into the sea? In response to the last question, the Supreme Court offered a negative answer.47 Rejecting the idea that environmental violations should give rise to automatic injunctions, the Court said that an injunction is an equitable remedy, subject to traditional balancing, and that it would “not lightly assume that Congress has intended to depart from established principles” permitting district courts to exercise their discretion.48 In a subsequent case, involving the Alaska 44 45

46

47 48

See Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985). This view is sketched and rejected in Amoco Production Co. v. Village of Gambell, 480 US 531 (1987). Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984). For a general discussion, see Plater, “Statutory Violations and Equitable Discretion.” See Weinberger v. Romero Barcelo, 456 US 305 (1982). Ibid., 313.

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Native Claims Settlement Act, the Court underlined the point and expressly rejected the presumption of irreparable harm in environmental cases.49 “This presumption is contrary to traditional equitable principles.”50 Nonetheless, the Court stressed that environmental problems raise distinct issues because “[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”51 Notably, the Court did not explain what it meant by the intriguing claim that environmental injuries “can seldom be adequately remedied by money damages.” But the Court said that if an environmental injury is likely, “the balance of harms will usually favor the issuance of an injunction to protect the environment.”52 When courts of appeals spoke in terms of a presumption in favor of injunctive relief, they might be understood as adopting a version of the irreversible harm precautionary principle – assuming that environmental harm is irreversible in the relevant sense, and requiring a strong showing by those who seek to proceed in the face of that harm. This interpretation helps to explain the simplest exception to the lower courts’ presumption: cases in which “irreparable harm to the environment would result if such relief were granted.”53 If, for example, an injunction against the use of a logging road would prevent the removal of diseased trees and hence allow the spread of infection through national forests, no injunction would be issued.54 Here, then, is a clear recognition of the existence of environment-environment trade-offs, in a way that requires a qualification of any irreversible harm precautionary principle. And when the Supreme Court rejected the presumption, it did so in favor of traditional equitable balancing in a way that recognized that serious harms, and perhaps irreversible harms, are on all sides. But even in doing so, the Court endorsed a kin of irreversible harm precautionary principle through its (too-simple) suggestion that environmental injury “is often permanent or at least of long duration” and its statement that harms to the environment can seldom be adequately remedied by money damages. Indeed, the latter statement seems to be an implicit recognition of the incommensurability problem. What remains undecided, after the Court’s decisions in the 1980s, is the appropriate judicial posture in the face of violations of NEPA.55 The Court’s rejection of a presumption in favor of preliminary injunctions might well be taken to suggest that such injunctions ought rarely to be issued in NEPA

49 50 51 52 53 54

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Amoco Production Co. v. Village of Gambell, 480 US 531 (1987). Ibid., 544. Ibid. Ibid. People of Village of Gambell v. Hodel, 774 F.2d 1414, 1424 (9th Cir. 1985) (emphasis in original). Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975); Thomas v. Peterson, 753 F.2d at 764n.8. For a general discussion, see Herrmann, “Injunctions for NEPA Violations: Balancing the Equities.”

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cases56 – especially, perhaps, in light of the fact that NEPA is a purely procedural statute, one that imposes information-gathering duties on agencies without requiring them to take that information into account.57 If courts cannot forbid agencies to act as they choose after producing an adequate environmental impact statement, injunctions might seem an odd remedy in the NEPA setting. But in what remains the most elaborate discussion of the question, then–Circuit Judge Breyer suggested that injunctions are often appropriate in NEPA cases.58 The discussion endorses an appropriately constrained irreversible harm precautionary principle, adapted to the NEPA setting, and resting on some combination of the accounts of irreversibility offered here.59 Judge Breyer did not contend that a presumption in favor of injunctive relief would be appropriate for environmental cases in general. Instead, he argued that NEPA is meant to prevent a particular kind of injury, one that should play a central role in the decision whether to grant an injunction. The purpose of NEPA is to ensure that officials take environmental considerations into account before they embark on a course of action. “Thus, when a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered.”60 That harm is not adequately described as a harm to the environment as such.61 The harm is instead the increased risk of harm to the environment that arises “when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment.”62 Irreversibility is central here, for it is simply the case that administrators are less likely to destroy a nearly completed project than they are one that has only started. The relevant harm “may well have to do with the psychology of decisionmakers, and perhaps a more deeply rooted psychological instinct not to tear down projects once they are built.”63 The problem is that “real environmental harm will occur through inadequate foresight and deliberation.”64 Judge Breyer’s point, then, is that “the district court should take account of the

56

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60 61 62 63 64

See New York v. NRC, 550 F.2d 745 (2d Cir. 1977); Conservation Society v. Secretary of Transportation, 508 F.2d 927, 933 3 (2d Cir. 1974); United States v. 27.09 Acres of Land, 737 F. Supp. 277, 283 84 (SDNY 1990); Stand Together Against Neighborhood Decay v. Board of Estimate, 690 F. Supp. 1191 (EDNY 1988). See Robertson v. Methow Valley Citizens Council, 490 US 332 (1989). Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989). See, in this vein, Washington County, North Carolina v. US Department of the Navy, 317 F. Supp. 2d 626 (EDNC 2004); Crutchfield v. US Army Corp of Engineers, 192 F. Supp. 2d 444 (ED Va 2001). Sierra Club v. Marsh, 872 F.2d at 500. Ibid., 504. Ibid., 500. Ibid., 504. Ibid.

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potentially irreparable nature of this decisionmaking risk to the environment when considering a request for preliminary injunction.”65 We can understand this analysis in one of two ways, corresponding to the two conceptions of irreversible environmental harm. The first involves the distinctive value of (some) environmental amenities and the risk that once they are lost, they are lost forever. The context in which Judge Breyer wrote, involving a pristine area, helps to clarify what may be at stake. The second involves imperfect information and option value. One goal of NEPA is to acquire environmental information at an early stage, in order to ensure that officials do not compromise future flexibility by embarking on courses of action that acquire unstoppable momentum. Injunctions, in the face of NEPA violations, freeze the status quo in a way that promotes that flexibility. None of this means that in NEPA cases, preliminary injunctions should be issued as a matter of course; that view would endorse the irreversible harm precautionary principle in its crudest form. Sometimes injunctions will themselves impose serious harm, and sometimes the risk to the environment is trivial. But in NEPA cases, it makes sense to consider, as a relevant factor, the risk that an inadequately informed decision to proceed will alter the status quo, ensuring that once an environmental impact statement is produced, it will be too late to have a meaningful effect on the outcome. If delay is not exceedingly costly, and if the risk of environmental harm is serious, injunctive relief is appropriate for NEPA violations. An understanding of the risk of irreversibility helps to explain why.

9. qualifications and conclusions The basis for an irreversible harm precautionary principle, along with an understanding of its limitations, is now in place. We lack any kind of algorithm for implementing that principle. But we should be able to, so that when a harm is irreversible in the sense that it is very costly or impossible to make restoration, special precautions may be justified; that it often makes sense to “buy” an option to preserve future flexibility; and that the loss of cherished and qualitatively distinctive goods deserves particular attention. But there are three important qualifications, involving the idea of optimal delay, distributional considerations, and what I shall call precommitment value. Let us briefly explore each of these.

10. irreversibilities and optimal delay The general notion of optimal delay provides important countervailing considerations. Future generations will almost certainly be both wealthier and more knowledgeable than the current generation. To the extent that wealth helps, they will be in a far better position, and possibly an unimaginably better position, to 65

Ibid., 501.

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handle social problems that materialize in their time. As Schelling argues, the nearly inevitable increase in wealth over time means that it “makes no sense to make current generations ‘pay’ for the problems of future generations.”66 Why should the relatively poor present transfer its limited resources to benefit the future, which is likely to be relatively rich? There is another problem. Expensive investments in precautions – such as greenhouse gas reduction – may turn out to diminish available resources for future generations, leaving them with less to use to control the damage that actually occurs. The argument for wait and learn is strengthened by these points. But any such argument must also take account of the incontrovertible fact that waiting simultaneously threatens to diminish the flexibility of future decision makers, and perhaps severely. Compare the loss of endangered species; because the loss is permanent, we have to be careful about delaying precautionary measures designed to ensure their continued existence. And recall Elster’s cautionary remark about the incentives of politicians, who cannot be reelected by people who are not yet born.

11. irreversibilities, distribution, and the least well off In some settings, an irreversible harm precautionary principle might seem to be especially beneficial to disadvantaged people. In the context of climate change, aggressive precautions are projected to give far more to poor countries than to rich ones, partly because rich nations are so much less dependent on agriculture. Indeed, arguments from distributive justice have been made on behalf of such precautions, to be funded by nations that are wealthy for the benefit of nations that are poor. Nonetheless, there is no simple connection between distributional goals and an emphasis on irreversible harms. Some of the risks associated with genetic engineering are irreversible, but the benefits of genetic engineering are likely to be felt most in poor nations. In the context of climate change, poor countries, including India and China, cannot easily afford aggressive regulation. A precautionary approach, based on concerns about irreversibility, may or may not be in the interest of such countries. To be sure, they will be helped if they do not pay for the relevant precautions. But if we are focused on their interests, it might be far better to give them cash now and directly, to be used as they see fit, than to give them in-kind benefits in the form of reduced risks of climate change for their descendents. In short, the analysis of distributional goals must be undertaken separately from the analysis of irreversibility. Sometimes we will hurt the least well off, rather than help them, if we buy an option to preserve our own flexibility. The cost of the option might be paid mostly by those who can least afford it. It

66

Schelling, “Expert Panel Ranking,” 627.

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follows that distributional issues must be engaged directly, and should not be entangled with issues of irreversibility.

12. precommitment value As Elster did decades ago, I have emphasized the value of preserving our flexibility. But in some domains, and as Elster has done more than anyone else to illuminate, future flexibility is undesirable and precommitment is essential. Individuals and societies are willing to pay a great deal to eliminate it. The tale of Ulysses and the Sirens is perhaps the most familiar example,67 and the idea of precommitment has many applications in the domain of risk regulation. With respect to terrorism, we might do best if we commit ourselves to taking certain courses of action if we are attacked; the precommitment creates deterrence and might protect against our own myopia. In the environmental context, regulators might be willing to pay for precommitment strategies that will operate as a constraint on any number of problems. These include interest-group power, collective action problems, myopia, weakness of will, and cognitive biases. A single decision maker who is a social maximizer might favor a precommitment strategy. In the context of precautions against climate change, such a decision maker might argue for an approach that diminishes flexibility. Elster’s own work emphasizes the importance of weakness of will. Such weakness, along with unavailability bias (a form of cognitive error, based on the absence of available instances, leading to underestimation of risks), might lead people to excessive emissions of greenhouse gas unless they adopt such an approach. Alternatively, a precommitment strategy, with firm commitments to act in specified ways over the next decades, might be adopted on the theory that interest-group pressures will defeat approaches that preserve flexibility. In the international context, precommitments on the part of many nations, especially the largest emitters, might well be necessary to respond to the risk of dangerous climate change. Indeed, the conventional precautionary principle, understood to place a thumb on the scales in favor of public health and the environment, might be explained in these terms. Perhaps the principle can be understood not as an effort to preserve flexibility, which can be bad, but on the contrary as an effort to ensure a commitment to a course of action that will provide the right level of protection. It is true that precommitment is often the best response to environmental problems and that it has an important place in approaching climate change. But the difficulties remain. Any precommitment strategy might turn out to be a mistake because new information may show that the strategy was wrong. And any such strategy may give rise to fresh problems, including public health and environmental problems, for which a different precommitment strategy might have been justified. We could easily imagine a precommitment strategy for 67

See Elster, Ulysses and the Sirens.

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climate change – in the form, for example, of very aggressive and immediate emissions reductions – that would be far worse than an approach that maintains flexibility. We could also imagine an approach to public health problems – in the form, for example, of quarantines – that would, under certain assumptions, create indefensible burdens, including restrictions on civil liberties. Perhaps a kind of precommitment strategy should be used to forbid such burdens or at least to reduce their likelihood. It is nonetheless important to see that option value is sometimes paralleled by “precommitment value,” for which regulators might be willing to spend a great deal.

13. conclusion The concept of irreversibility might be taken to refer to the sheer gravity of certain losses, and ideas about both permanence and magnitude play a large role in moral intuitions, including those that play a significant role in debates about climate change. I have suggested, however, that the concept is best understood in two distinctive ways. On the account with the greatest relevance to both private and public decisions, the concern about irreversibility refers to people’s willingness to pay a premium to maintain flexibility for the future. (This approach includes both of Elster’s forms of irreversibility.) In many settings, it makes sense to pay for an option to avoid a risk of losses that are irreversible in the sense that they cannot be recouped. The amount of the payment depends on the size and nature of the loss if it is irreversible. In many cases, including that of climate change, irreversible losses are on both sides. To the extent that this is so, it is necessary to assess their likelihood and their magnitude. We can find an implicit understanding of option value in the emphasis on irreversibility in American law, along with many international agreements. But because social expenditures are typically sunk costs, an emphasis on irreversibility will sometimes argue in favor of delaying, rather than accelerating, expensive forms of protection. Whether it does so depends on what is known about the magnitude and likelihood of the relevant effects. It is necessary to assess both of these in order to know how to proceed. On an alternative view, the idea of irreversibility points to the qualitative distinctness of certain social goods, and the implausibility of suggesting that those goods are fungible with money. Of course few goods are infinitely valuable. But it is obtuse to think that such social goods as wildlife and pristine areas should be valued in the same way as their cash equivalents. Anyone who believed in such equivalence would have an unrecognizable understanding of how wildlife and pristine areas are properly appreciated and experienced. This understanding of irreversibility is difficult to operationalize; it does not suggest any particular specification of an irreversible harm precautionary principle. But it does, I suggest, help to illuminate important areas of American law, including the courts’ relative willingness to issue injunctions in environmental cases. That willingness helps to explain the view that in many domains, including that of

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climate change, it is appropriate to act now rather than later, notwithstanding the speculative and probabilistic character of some of the relevant harms. References Ackerman, Frank, and Lisa Heinzerling. 2004. Priceless: On Knowing the Price of Everything and the Value of Nothing. New York: New Press. Arrow, Kenneth, and Anthony Fisher. 1974. “Environmental Preservation, Uncertainty, and Irreversibility. The Quarterly Journal of Economics 88, no. 2 (May), 312 319. Benoit, Morel, et al. 2003. “Pesticide Resistance, the Precautionary Principle, and the Regulation of Bt Corn: Real Option and Rational Option Approaches to Decisionmaking.” In Battling Resistance to Antibiotics and Pesticides, edited by R. Laxminarayan. Washington, DC: Resources for the Future. Brealey, Richard, and Stewart Myers. 2002. Principles of Corporate Finance. New York: McGraw Hill. Chichilnisky, Graciela, and Geoffrey Heal. 1993. “Global Environmental Risks.” Journal of Economic Perspectives 7, no. 4: 65 86. Cicchetti, Charles J., and Louis J. Wilde. 1992. “Uniqueness, Irreversibility, and the Theory of Nonuse Values.” American Journal of Agricultural Economics 74, no. 5 (Proceedings Issue): 1121 1125. Copeland, Tom, and Vladimir Antikarocov. 2001. Real Options: A Practitioner’s Guide. Chesire: Texere Publishing Limited. Dixit, Avinash, and Robert Pindyck. 1994. Investment under Uncertainty. New Jersey: Princeton University Press. Elster, Jon. 1979. “Risk, Uncertainty, and Nuclear Power.” Social Science Information 18: 371 400. Elster, Jon. 1983. Explaining Technical Change: A Case Study in the Philosophy of Science. Cambridge: Cambridge University Press. Elster, Jon. 1986. Ulysses and the Sirens: Studies in Rationality and Irrationality. Cambridge: Cambridge University Press. Farrow, Scott. 2004. “Using Risk Assessment, Benefit Cost Analysis, and Real Options to Implement a Precautionary Principle.” Risk Analysis 24: 727 735. Fisher, Anthony C. 2001. “Uncertainty, Irreversibility, and the Timing of Climate Policy.” Prepared for the conference on the Timing of Climate Change Policies, Pew Center on Global Climate Change (October). Available at http://are.berkeley.edu/ courses/IAS175/Spring2006/pdfs/Fisher.pdf. Goklany, Indur. 2001. The Precautionary Principle: A Critical Appraisal of Environmental Risk Assessment. Washington, DC: Cato Institute. Goodin, Robert. 1992. Green Political Theory. Cambridge: Cambridge University Press. Herrmann, Leslye A. 1992. “Injunctions for NEPA Violations: Balancing the Equities.” 59 U Chi L Rev 1263. Knight, Frank H. 1933. Risk, Uncertainty, and Profit. London: London School of Economics and Political Science. Lomborg, Bjorn. 2001. The Skeptical Environmentalist. New York: Cambridge University Press. Montgomery, W. David, and Anne E. Smith. 2000. “Global Climate Change and the Precautionary Principle.” Human and Ecological Risk Assessment: An International Journal 6 (June): 399 412.

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Myrick Freeman III, A. 2003. The Measurement of Environmental and Resource Values. Washington, DC: Resources for the Future. Nordhaus, William. 2008. A Question of Balance. New Haven: Yale University Press. Plater, Zigmund. 1982. “Statutory Violations and Equitable Discretion.” 70 Cal L Rev 524. Posner, Richard A. 2004. Catastrophe: Risk and Response. Oxford: Oxford University Press. San Francisco Precautionary Principle Ordinance, available at http://temp.sfgov.org/sfen vironment/aboutus/innovative/pp/sfpp.htm. Schelling, Thomas. 2004. “Expert Panel Ranking.” In Global Crises, Global Solutions. edited by B. Lomborg. Cambridge, UK: Cambridge University Press. Sunstein, Cass R. 1993. Laws of Fear. New York: Cambridge University Press. Sunstein, Cass R. 2007. Worst Case Scenarios. Cambridge, MA: Harvard University Press. Wesseler, Justus. 2003. “Resistance Economics of Transgenic Crops.: A Real Option Approach.” In Battling Resistance to Antibiotics and Pesticides, edited by R. Laxminarayan. Washington, DC: Resources for the Future.

part iii POLITICAL AND SOCIAL NORMS

5 Flexible and Rigid Constitutions A Post-Kelsenian Typology of Constitutional Systems Pasquale Pasquino

Legal doctrine distinguishes from the “historical” point of view between ancient and modern constitutions – the classical reference is still the book by C. H. McIlwain, Constitutionalism Ancient and Modern from 1947. It would be more accurate to speak of concepts of constitutions rather than of institutional realities, since the ancient idea of a constitution still makes perfect sense; it describes something existing by definition in virtually any human society and that certainly did not disappear with the eighteenth century. More important for the topic of this chapter is the “systematic” distinction introduced by James Bryce at the end of the nineteenth century, the one between flexible and rigid constitutions. Here I will propose a different typology stemming from a suggestion of Jon Elster, who speaks of “political norms” to qualify constitutional conventions.1 For the sake of conceptual clarity, I shall begin by summing up briefly the meaning of the classical dichotomies, considered in the first part of this text, before moving to the one I want to suggest. By modern constitution, we usually mean a set of written provisions (norms), enacted by political actor(s),2 that mostly define the fabric/structure of the governmental machine (Sieyes wrote for instance: “ce n’est pas la nation ou la société qu’on constitue, mais son gouvernement”). The constitutional provisions spell out moreover some citizens’ fundamental rights that the political actors – they will assign to themselves the name of “representatives” – pledge to respect and enforce. Often these written norms, notably from the end of the eighteenth century and almost always nowadays, are not only written but also rigid, an aspect on which I will come back soon. The

1

2

See Elster, “Political Norms.” Elsewhere, Elster examines “a subset of political norms, (unwritten) constitutional conventions to argue that some of them fall under the heading of social norms” (Elster, “Norms,” 209). The so called constituent power.

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expression “(ancient) constitution” is used instead both to translate the Aristotelian term of politeia and to qualify the English constitution, that is, its political system that since the end of the Middle Age was qualified as ancient. On that point, the two classical references are J. Pocock’s The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1957) and Jean Louis Delolme’s The Constitution of England (1775). In these cases, the term “constitution” doesn’t refer to a specific text that would take the name of “constitution,” even though some written texts are qualified as “constitutional laws” in England – ratione materiae, or nomoi in the Athenian demokratia of the fourth century BC. In this family – whose regular political systems lack a single text called a constitution – are not only the United Kingdom, the constitution of which is essentially customary, but also the French Third Republic and the contemporary Israeli state.3 On the basis of this dichotomy, any political system has a constitution (1) Verfassung (a structure, or a form of government), but only most of the modern political systems also have a constitution (2) Konstitution: a written (sometimes rigid) document defining citizens’ rights and the organization of the government, as we read in article 16 of the French Declaration of Human Rights of 1789. It may be relevant here to try to make sense of the reasons why almost all the political systems in the contemporary world, not including the UK as well as some other very few exceptions, have a written constitution, a Konstitution, or why they needed to write down the rules of the government, since the English example shows that this is not inevitable and even not for a democratic regime such as the UK! I would suggest that there are mainly two reasons to write down a Konstitution, reasons which for historical circumstances seem to have been de facto compelling outside the UK. On one side, if we think of the rules for governing a country as a pact among political elites and citizens or more often among different segments of the political elites, we may suppose that writing down the rules is a symptom of lack of trust. If a rule (included a previous identical customary rule) is written down, it is probable that those who have expectations concerning the respect of the rule have not enough trust in the silent agreement that would support an (unwritten) convention. Hence we can assume that writing down the rule could produce a clearer evidence of its breach and produce a more evident signal of the responsibility of the party that transgresses the rule. It is a different and more complex question to know if this signal would be a guarantee of a greater respect of the rule or of the agreement underlying it. But I am focusing here on the reasons for writing down a constitution, not a systematic inquiry concerning its effects. I’ll come back to an importantly related question later on.

3

See on Israel: Klein, Israël Etat en quête d’identité, and Klein, Théorie et pratique du pouvoir constituant.

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On the other side – rehearsing my original interrogation concerning the origin of written constitutions – we may easily figure out an alternative reason for writing down a Konstitution. Sometimes, political order is not traditional or based on an old (real or fictitious) constitution in the ancient sense of the term, Verfassung. Sometimes revolution has not the meaning of the English Glorious Revolution, a coming back to the previous just political order; rather, revolution, as we are used to thinking since 1789, is instead a break with the past (an ancient regime) and the beginning of a new political order.4 Now, in that case a written constitution is a signal, a sign, and a manifesto of the new order; both a death declaration (of the ancient regime) and the trumpet of the new world; at the same time it is a pledge and a hope, but also a chart organizing (proposing the organization of) governmental power. We may want to add a third category, or a different reason to write a Konstitution, based on the case of the U.S. constitution which ratified the “closer union” of a group of previously loosely confederate political entities, the ancient colonies of North America. The classical dichotomy I just summarized – written versus unwritten/ customary constitutions – came under attack as marginal and irrelevant at the end of the ninteenth century by James Bryce, who in his essay “Flexible and Rigid Constitutions”5 suggested replacing it with the alternative dichotomy present in the title of his essay, a bipartition that is presently commonly accepted. I do not need to reproduce Bryce’s argument in detail. The core of his thesis, which establishes the dichotomy between flexible and rigid constitutions, asserts that it is the presence of a procedural rule that qualifies a rigid constitution: that is, the prohibition for the elected legislative representatives to modify through majority rule the written text called constitution. This constraint upon the elected majority and its power – the one imposed, for instance, by Article V of the U.S. Constitution upon the majority of the Congress – is the distinctive element of a rigid constitution. (We have to consider moreover that bicameralism and executive veto represent in turn limits to the simple majority of the members of a parliament in their capability to edict statutes.) In the absence of this meta-rule, the constitution (no matter if it is written or customary) is flexible. Therefore, a supermajority is required (or some other form of special procedure)6 for the exercise of what we call the amendment power that distinguishes two families of constitutions. This is my summary of Bryce. But it is worth looking more closely at his explicit definition, which is both very interesting and somehow problematic. As far as I can see, the British legal scholar doesn’t speak of majority and 4

5 6

On the concept of revolution, see Griewank, Der neuzeitliche Revolutionsbegriff. Entstehung und Entwicklung. Republished in Bryce, Constitutions. See Bryce, Constitutions, 5 7. For an updated analysis, see Anckar and Karvonen, “Constitutional Amendment Methods in the Democracies of the World.”

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supermajority as I did. He claims simply that the “ordinary legislative authority”7 cannot change the (rigid) constitution since the latter “takes rank above the ordinary laws;” the constitution is “entirely superior [my italics] to the other laws which are passed by the legislature in the ordinary every-day course of its action.” Rigidity seems to result from the circumstance that such a constitution derives its peculiar status from a source other than the legislature, a source that deploys “a superior force.” So, the superiority of the (rigid) constitution that makes it un-amendable by the ordinary legislative power is an effect and a consequence of the fact that it is the creature of a superior creator, which the Founding Fathers of eighteenth-century constitutions called “constituent power.” Why this constituent power is superior is not entirely clear. Bryce says nothing concerning the reasons; nor does he speak to why the legislative is often a representative power making a final decision for the citizens whenever the constitution is not popularly ratified. What quality makes the constituent power superior is not specified. Rigidity of some norms implies superiority of their creator,8 but the superiority can only be deduced from the rigidity of the constitutional norms. Somehow the argument risks seeming circular if we do not understand what is superior in the constituent power. Moreover, perhaps, the same argument is not robust enough to ground the dichotomy. I want to suggest a further step, this time beyond Bryce, based on developments of constitutionalism in the twentieth century, something Bryce could not know nor anticipate, even though he had a clear intuition of these developments in the section of his remarkable text devoted to constitutional interpretation.9 To begin, a criticism can be addressed to Bryce from inside his taxonomy. England seems to represent for him a type – the Ur-type, if I may say – of a flexible constitution, since there is no hierarchy between a parliamentary act, what we qualify as ordinary law (statute), and a constitutional act (ratione materiae) – we can think of the Act of Settlement or of the Septennial Act.10 Of course, we should take into account the complex legislative procedure typical of the ancient English constitution, which, if we ignore that the royal veto, was still alive when Bryce wrote his text. It was notably not majoritarian at all. Granted, as I just mentioned, the king’s veto was virtually dead, but the Commons – the majority of them – could not easily pass a law without the 7 8

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Bryce, Constitutions, 8. This thesis is evidently unappealing to those who believe that the constitution is “prole senza madre creata,” a creature which has no mother! Bryce, Constitutions, 72 ff. This absence of hierarchy doesn’t stand from the point of view of the Kelsenian doctrine of the validity of norms. The UK too has a “material constitution,” a set of norms regulating the procedure to enact norms, which is the foundation of the validity of Parliamentary acts. Moreover, we could claim that there is normally an implicit hierarchy between a parliamentary act and a convention of the constitution. And it is very likely more difficult and rare to modify in England a convention by an act of Parliament than to amend the U.S. Constitution or to write a new constitution in France.

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agreement of the House of Lords (an assembly not entirely controlled by the political parties). What I am bringing attention to here is that the ancient English constitution was a glorious and belated survival of the classical (best) regime which the Aristotelian tradition called “mixed government.” This type of political order is de facto rigid since no major decision can be made by a single member of the legislative body (the king, the Lords, or the Commons in England) without the consent and the agreement of the other two. Moreover, no power can be superior to the “King in Parliament” for the evident reason that this body included the totality of the social forces, and nothing can be superior to the totality of the social body and its essential parts (mere tes poleos).11 We may bring back to our mind that the French Revolution started legally when the representatives of the Third Estate rejected the “rigid” mechanism for voting in the Estates General, the vote by estates! Thus, it doesn’t seem inappropriate to speak of the ancient English constitution as a rigid one. Technically speaking, and from the point of view of Bryce, it is neither rigid, since there is no formal (Kelsenian) hierarchy of norms, nor flexible, in my sense,12 since until recently the majority of the Commons could not impose easily its will, even for nonconstitutional, ordinary acts (ratione materiae).13 So what characterizes the classical English constitution is the factual absence of a hierarchy of norms, something that doesn’t differentiate it from most of the ninteenth-century written constitutions, as I’d like to show now. However, another question needs to be discussed before I introduce the typology alternative to the one suggested by Bryce and later on consecrated by H. Kelsen. If we accept the doctrine presented by Albert Venn Dicey that the bulk of the English/British constitution is made up of constitutional conventions (rather than by written norms), we should have something to say about how they emerge and how they change over time. If we do not know anything about that, it is somehow pointless and futile to qualify a constitution as one falling under the category of rigid or flexible. If it is very difficult to modify constitutional conventions (the norms characterizing customary constitutions), then it might be that a flexible constitution is much more rigid – that is, much more difficult to modify than other constitutions.14

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Only the modern post Hobbesian (more specifically Lockian) theory of the structure of govern ment can formulate the hypothesis of a “principal” (constituent power) superior to its “agent” (constituted power). Majoritarian. For example, fox hunting, abolished only by the “Hunting Act 2004” because of the stubborn opposition of the House of Lords. One might object that I’m conflating Bryce’s difference between legal systems with or without a hierarchy of norms (his flexible and rigid constitution), with the difference between systems using majority or supermajority to modify norms that are constitutional ratione materiae. But it seems to me (and I am with Kelsen on this point) that the only tangible form of the hierarchy is the mechanism of decision making used to enact the norms. It is not easily understandable, at least to me, in which sense norm x is superior to norm y if the rules to enact and modify x are exactly the

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Dicey qualifies the constitutional conventions of the British customary constitution as norms/rules/provisions that are not subordinated to the “rule of law,” which seems to be itself a constitutional convention! Here, rule of law means that the violation of a law (a jurisprudential precedent or an act of the Parliament) is subjected to a sanction by the state-specialized organs in charge of this task. More exactly, the agent supposed to have violated the law can be brought to a court of justice, which has the power to declare the agent guilty of the violation and punish him or her or, alternatively, to reject the indictment. This is exactly what does not happen in the case of infraction of constitutional conventions. The violation may actually be just the first instance of a new convention! It’s difficult to know, by the way, the first time that the convention is violated; but this problem doesn’t need to be considered here. In the British context, we have to do with a different dichotomy: laws and constitutional conventions, where the violation of the latter cannot be the object of a judicial sanction.15 This dichotomy can be qualified as static since it distinguishes two categories of norms at any moment in time; the dichotomy of Bryce, however, is diachronic since it has to do with the rule to modify norms, more specifically norms of constitutional nature – formally or materially – and I’m using here the Kelsenian classical distinction between the material and the formal concept of constitution. In “Political Norms,” Jon Elster suggests implicitly of calling the two classes of Dicey’s dichotomy (laws and conventions) respectively: legal and political norms. I do not need to discuss here Elster’s general sociological theory of norms.16 I’ll simply borrow some elements of his language that seem to me clearer than the one used by Dicey and present my own tentative typology of constitutional systems. First of all, the reason why it seems to me useful to call constitutional conventions political norms is that the violation of them can be sanctioned only by political actors – in democratic systems: the voters. As to violation of the law, instead, there are specialized agencies in charge both of the declaration of the violation (courts through their opinions) and of the material

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same to enact and modify y! If the rule lex posterior abrogat priorem is the general rule of norm’s enactment, I do not see how it is possible to speak of hierarchy of norms or of their sources. Or the hierarchy is like that of the angels in the Christian medieval theology that I admit, like Voltaire, not to be able to grasp. The French philosopher in his article Ange in the Dictionnaire Philosophique wrote: “L’auteur de l’article Ange, dans l’Encyclopédie, dit que toutes les religions ont admis l’existence des anges, quoique la raison naturelle ne la démontre pas. Nous n’avons point d’autre raison que la naturelle. Ce qui est surnaturel est au dessus de la raison. Il fallait dire (si je ne me trompe) que plusieurs religions, et non pas toutes, ont reconnu des anges. Celle de Numa, celle du sabisme, celle des druides, celle de la Chine, celle des Scythes, celle des anciens Phéniciens et des anciens Égyptiens, n’admirent point les anges.” We may want to include constitutional conventions inside the legal order (as positivists tend to do), but this is just a nominalist/definitional move that changes nothing as to the substance of the problem I’m discussing here. See notably Elster, Explaining Social Behavior, and Elster, “Social Norms and the Explanation of Behavior.”

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sanction (the executive). Notice that in a rule of law system, the judiciary and the executive make their declarations and impose sanctions on the basis of previous and known rules (codified statutes or jurisprudential precedents).17 The judiciary seems to be the agent in charge of guaranteeing the principle of legality, meaning at the same time that laws ought not to be transgressed and that there is no transgression in the absence of a given law.18 In its most comprehensive meaning, a Rechtstaat is a political regime where it is possible to sue in a court of justice a public official, a member of the government in the larger sense of that term, if he or she transgresses a law. Now this is not possible, as we saw, if the official transgresses a convention, and – I would add – a constitutional (rigid) provision, at least if there is no court where the supposed violator could be brought! The point I’m suggesting is very simple: it seems that between a conventional, customary constitution (like the British one according to Dicey) and a rigid constitution such as the French constitutions of the revolutionary period until the 1970s, from the point of view we are considering now, there is no difference at all. The circumstantial fact that we have written and rigid norms rather than convention doesn’t change anything from the point of view that in either case the violation is not the possible object of a legal suit. In the absence of a guardian for rigidity (such as a constitutional court), the difference between rigid and flexible constitution tends to evaporate, since it is not possible to complain if the constitutional norm is violated. China is a good example: the Chinese constitution is rigid but citizens cannot sue the government if they believe that their constitutional rights are violated, since there is no court in China to check whether the government is violating the constitution or not. Notwithstanding a repeated and superficial opinion, as I have already said, the Chinese constitution of 1982 matters.19 It is a fact that this constitution is formally rigid.20 Now, in spite of the circumstance that the so-called Communist Party controls a very large supermajority inside the NPC (National People’s Congress), we have to pay attention to what seems prima facie a quite surprising phenomenon. In 2004, the constitutional amendment introducing “property rights” in China was passed with barely any opposition in the NPC. However, 17 18

19 20

In the absence of that, the system is not based on the rule of law but it is despotic. This is reminiscent of Montesquieu’s definition of freedom/liberty at the beginning of Book XI, chapter 3, in his The Spirit of the Laws: “In a state, that is, in a society where there are laws, liberty can consist only in having the power to do what one should want to do and in no way being constrained to do what one should not want to do. One must put oneself in mind of what independence is and what liberty is. Liberty is the right to do everything the laws permit; and if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power.” I discuss this topic in my article: Pasquino, “Rigidity of a Unilateral Constitution,” 210 222. Its article 64 reads: “Amendments to the Constitution are to be proposed by the Standing Committee of the National People’s Congress or by more than one fifth of the deputies to the National People’s Congress and adopted by a vote of more than two thirds of all the deputies to the Congress. Laws and resolutions [instead] are to be adopted by a vote of more than half of all the deputies to the National People’s Congress.”

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in April 2007, the same NPC approved an ordinary statute on exactly the same topic, but this time the statute was the object of a real debate and of a significant opposition. Why? Why is a statute more important than a constitutional amendment? It would be wrong to answer: since the constitution is insignificant – and in reality the constitutional amendment was at the same time the signal and the precondition of the statute. The point is different. Since the violation of the constitution cannot produce a suit in a court of justice, unlike the violation of a statute, it is not surprising that the members of the parliament hostile to the private property have been opposing the statute more seriously than the amendment to the constitution. We could say that in this case, the hierarchy of norms is reversed on its head and the statute is superior to the constitution. This is a less confused and hypocritical conception than the French one concerning the relationship between the loi (parliamentary statute) and the constitution, which are both at the same hierarchical level because the loi and the constitution are supposed to be the expression of the “general will.” Thus, in China nowadays, as in all the countries with rigid constitutions from the ninteenth century (with the partial exception of the United States and Norway), the constitutional rigidity and the hierarchy of norms is in the best case a bit of legal theory, but not at all an element of the legal and political reality! The enemies of private property in Beijing were not worried because of the constitutional amendment of 2004 (wrongly so because they did not understand its signaling function). What made them nervous was the simple statute, which is perfectly understandable. What can happen if the Chinese constitution is transgressed? From a legal point of view, pretty much nothing. On the contrary, if there is an ordinary statute protecting private property and this statute is violated, there exists the possibility to sue the author of the breach of law in court. So in which sense is a constitution rigid if there is no legal consequence of its violation?21 The only consequence is exactly the same as for a violation of a convention under a customary constitution: other political actors can oppose and punish the author of the violation. This is what happened in England at the time of the Great Rebellion when the Stuarts attacked the ancient English constitution. In democratic systems, at the end of a representative’s term the voters act as a court adjudicating in a conflict. 21

The First French Constitution, Titre VII, art. 8, alinéa 2 and 3 declares: « Aucun des pouvoirs institués par la Constitution n’a le droit de la changer dans son ensemble ni dans ses parties, sauf les réformes qui pourront y être faites par la voie de la révision, conformément aux dispositions du titre VII ci dessus. [This is the principle of rigidity!] L’Assemblée nationale constituante en remet le dépôt [the protection] à la fidélité du Corps législatif, du roi et des juges, à la vigilance des pères de famille, aux épouses et aux mères, à l’affection des jeunes citoyens, au courage de tous les Français ». It is interesting to notice that the judges are here among the guardians of the constitution at the same time as the king, the legislative body and the citizens, which included women, who had been excluded from active citizenship. This text may be considered at the same time a naïve instantiation of the Enlightenment culture and the first example of what we could call now Verfassungspatriotismus!

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Under closer scrutiny, Bryce’s dichotomy seems to evaporate. This is the reason why I would suggest an alternative dichotomy. I believe it is more interesting from a heuristic point of view to distinguish between constitutional systems that contemplate the possibility of a legal sanction for violation of the constitution and systems that just have political sanctions as mechanisms to protect and stabilize the hierarchy of norms and the balance of powers. First, notice that in this perspective I agree with Kelsen: any constitutional system can be presented as a hierarchy of norms. Second, the legal sanction of violation of the constitution can exist only in constitutional systems where there is constitutional adjudication – constitutionalized, as for instance in Germany and Japan; quasi-constituionalized, as in France until 2010;22 or customary, as in the United States and Israel. I wish to focus now on a special aspect of this control that is normally disregarded. For lack of a better expression, I suggest that we will speak in these cases of a quasi-legal sanction. Here is why: a legal norm in Elster’s sense presupposes (as already in Hobbes) a power (Hobbes speaks of the power of the sword) able to enforce the sanction pronounced from the agency declaring the breach of the law. In the Athenian democracy of the fourth century BC, the citizens themselves as jurors in a trial adjudicated decisions taken by the people’s assembly that were possibly para-nomon23 (contrary to the democratic constitution/politeia) and enforced themselves the judicial decision – in Athens as in Republican Rome there were no police. In the modern political society, legal sanctions are normally enforced by the executive power. Now, if it may be expected that the executive enforces infractions of the laws, it may be a bit more problematic that it will enforce judicial decisions against the executive power itself. Nonetheless, something similar happens with constitutional adjudication to what happens with the French administrative courts. Born to shield the state vis-à-vis citizens’ demands of justice, the administrative courts and the Conseil d’Etat became over time a central element of the Rechtstaat since they protect the citizens’ rights versus governmental actions ultra vires. By that I mean, a political power that would refuse to accept the decisions of a constitutional/supreme court (which, like any administrative court, has no power of the sword!) could easily trigger a reaction of sanction by the voters. It is useful to develop briefly this point since it can help us to understand the role of constitutional adjudication in a limited government or, as we say now, in a constitutional democracy. In such a regime, conceptualized systematically and clearly for the first time by the Founding Fathers of America, and more specifically by Alexander Hamilton in the Federalist Paper #78, there is no sovereign or absolute power inside the constitutional system, but only limited competences 22

23

When the Constitutional Council started to control enacted laws, and not only the approved statutes before their promulgation. On this legal institution, see Hansen, The Athenian Democracy in the Age of Demosthenes, 205 218.

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of each single agency of the polyarchic structure of the government. Since abuses of power are always possible, the judiciary has among other functions the task of signaling the violation of the constitution. To be sure, most of the time a constitutional violation, from an epistemic point of view, is similar to an emergency situation; there are no objective standards to say if event x qualifies as an emergency situation, or if some norm or action represents a constitutional violation. The latter case arises only if an institutional agency has the power of qualifying event x as contrary to the constitution – which is not the case, for instance, in China today24 and was not either in France under the first three republics. What I’m saying is that there will be no violation (at least no declared violation) if there is no court or other independent25 organ competent for declaring the existence of the alleged violation – we could perhaps say the constitutional emergency. The function of the court in this case is first of all to send a signal, to raise a red flag, declaring the existence of the violation. In a variety of circumstances, the court cannot enforce the decision; it needs the cooperation of the other constituted powers, notably of the lower courts, the executive branch, and the citizens to transform a signal and declaration into an effective legal sanction. There are enough cases of unenforced court decisions (from the crucifixes in Bavaria to the sentence of the Italian Constitutional Courts asking for more pluralism in the media system, not to speak of the U.S. Supreme Court) to make my point more than a mere academic fantasy. Based on the previous considerations, it would be possible to represent the new typology with a diagram (Figure 5.1). On one side, we could classify constitutional systems where the violation of conventions or formal (in the Kelsenian sense) constitutional law has no other consequence than a possible popular or political sanction – in that sense both constitutional convention à la Dicey and constitutional provisions of written and rigid constitutions without constitutional adjudication are political norms in Elster’s language. Here, rigidity is not more than a flatus vocis. It is like the mansardes in the Parisian Haussmann’s buildings: they are higher in the building but less important than the lower floors from any other point of view. Remember the Chinese difference between constitutional amendment and statute laws! On the other side, we can classify a very large number of post–Second World War constitutions, including the American one, that introduced a mechanism of signaling constitutional transgressions: judicial review and/or constitutional courts with the power to declare laws or other acts of the government as violations of the content of the rigid constitution: the separation of powers and the rights of individuals constitutionally protected. The declaration of unconstitutionality is all 24

25

This claim has to be qualified: there is no court that can declare a legal norm unconstitutional, but the Standing Committee of the National People’s Congress can declare a legal norm incompatible with the constitution which shows that the Chinese government believes in principle in the hierarchy of norms. From the parts in conflict: the citizens and the government.

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A “political norms" systems A2 “formal” constitution

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B “quasi-legal norms” systems

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Written/rigid norms Signaling mechanism

Constitution Legislative acts

Courts

Courts

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Enforcement of legislative acts France1791 China

1971

Rule of law principle of legality

U.S. Germany Italy Japan Poland etc.

Constitutional adjudication

figure 5.1 New typology of constitutions.

that the courts ought to and can do. It is the task of the other branches and of citizens to enforce the judicial decision. References Anckar, Dag, and Lauri Karvonen. 2002. “Constitutional Amendment Methods in the Democracies of the World.” Paper delivered at the 13th Nordic Political Science Congress (August 15 17). Aalborg. Denmark. Bryce, James. 1905. Constitutions. New York: Oxford University Press. Elster, Jon. 2007a. Explaining Social Behavior. Cambridge: Cambridge University Press. Elster, Jon. 2007b. “Political Norms.” Paper presented at the International Research Seminar on Social Sciences and Political Studies, National University of Colombia, October 19, 2007. Elster, Jon. 2009a. “Norms.” In The Oxford Handbook of Analytical Sociology, edited by Peter Hedström and Peter Bearman. Oxford: Oxford University Press. Elster, Jon. 2009b. “Social Norms and the Explanation of Behavior.” In The Oxford Handbook of Analytical Sociology, edited by Peter Hedström and Peter Bearman. Oxford: Oxford University Press. Griewank, K. 1992. Der neuzeitliche Revolutionsbegriff. Entstehung und Entwicklung, 3rd edition. Hamburg: Europäische Verlagsanstalt. Hansen, M. H. 1987. The Athenian Democracy in the Age of Demosthenes. Oxford: Oxford University Press. Hunting Act. 2004. http://www.legislation.gov.uk/ukpga/2004/37/contents. Klein, Claude. 1996. Théorie et pratique du pouvoir constituant. Paris: PUF. Klein, Claude. 1999. Israël Etat en quête d’identité. Paris: Casterman. Montesquieu. 1989. The Spirit of the Laws. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press.

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Pasquino, Pasquale. 2009. “Rigidity of a Unilateral Constitution: Takes the CCP the Constitution Seriously?” In Modelli giuridici europei nella Cina contemporanea, edited by Gianmaria Ajani. Napoli: Jovene. Voltaire. 1819. “Dictionnaire Philosophique.” In Oeuvres Complètes de Voltaire. Tome Vingt Neuvième. Premiere Partie. Paris: Perronneau & Cérioux.

6 What Makes People Tip Diego Gambetta*

The giving of tips – the discretionary payments customers make to certain occupations over and above the price of what they purchase – involves, for any one transaction, small amounts of money. Yet, while tips are perceived as a marginal disbursement of little consequence for individual finances, collectively considered, in some countries and for some occupations, tips redistribute large amounts of money and form a sizeable percentage of service workers’ income.1 Mark Starbuck, for instance, estimates that in 2006, “British consumers provided no less than 1.9 billion in tips to restaurant waiters alone.”2 Jon Elster, who has a short discussion on “the norm of tipping” in Explaining Social Behavior, writes that in the United States “estimates of the fraction of income that waiters derive from tips range from 8 percent (the Internal Revenue Service assumption) to 58 percent for waiters serving full course meals.”3 Ofer Azar says that “tips in the US food industry alone amount to about $42 billion annually.”4 Once we add all other occupations which are tipped in the United States – hairdressers, taxi drivers, casino croupiers, beauticians, bartenders, hotel staff, shoe shine, and more – the sums involved become comparable to the total size of charity donations in the United States, estimated, for 2007, at $306 billion.5

* This paper originates from many discussions I have had over the years with Mark Starbuck during the preparation of his dissertation on cross national and cross occupational differences in tipping practices. I am indebted to Mark for his comments and for many of the references mentioned in this chapter. I am also grateful to Valeria Pizzini Gambetta for her insightful comments on an earlier draft. 1 On the economic impact of tips, see for instance Lynn and Mynier, “Effect of Server Posture on Restaurant Tipping”; and Schmitt, “Tips: The Mainstay of Many Hotel Workers’ Pay,” 50. 2 Starbuck, A Comparative Study of Tipping Practices and Attitudes, 5 6. 3 Elster, Explaining Social Behavior, 367 368. 4 Azar, “Incentives and Service Quality in the Restaurant Industry,” 1917. 5 Giving USA Foundation, www.aafrc.org/press releases/releases/20080622.htm.

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Tipping decisions are also an interesting phenomenon per se, eminently suitable for investigating behavioral theories. In many countries, tips are perhaps the only sizeable area of market transactions to be formally unregulated, and furthermore tipping can be easily observed across different types of occupations and transactions. They lose interest where the discretionary element is removed by fiat: this is the case in the few countries in which tips are legally banned, as in Angola, Singapore; in some communist countries, such as China and North Korea; and in establishments in which managers discourage the tipping of staff. Conversely, tipping decisions also lose interest once tips are institutionalized into a service charge and become part of the price of a service. Although I will not address it here, it is of course an interesting question to ask under what conditions these mandatory states of affairs emerge. However, insofar as tips remain discretionary, not enforced by law either way, their study can reveal some of our fundamental behavioral dispositions in a natural setting without recourse to laboratory experiments. Why should we pay more when we can avoid it? Why should some of us refuse a tip? Why do we tip some occupations and not others, or in some countries more than in others? And in what way does tipping become a social convention to which we simply adapt? In this chapter, I identify a range of micro-motives that lead people to tip or refrain from it, as well as the motives that lead people to accept or reject tips. I also derive some empirical predictions relating to each motivation. I mention some predictions even if everyday observation indicates that they are false, because the implications are of interest for our theories. Some predictions have already been tested, others could be tested using cross-occupational or cross-national differences in tipping practices, while still others could be tested semi-experimentally by manipulating the conditions of naturally occurring exchanges. The reason why I find reflecting on tipping so attractive is because even such a seemingly simple behavior turns out to be complicated enough to force us to deploy an unexpectedly large portion of the tool kit of explanatory mechanisms at our disposal, a tool kit to which Jon Elster has given an unparalleled contribution, and whose style of reasoning, as it should be effortlessly apparent, has a clear influence on this essay. The study of tipping motivations is an excellent gymnasium not only for grasping the properties of a range of different individual and social mechanisms – which include coordination, self-interest, signaling, social conventions, reciprocity, and other-regarding motivations – but also for practicing the most delicate task of the social scientist, namely, linking behavioral assumptions with empirical observations or predictions.

1. tipping as a coordination game Tipping can be conceptualized within a simple game-theoretic framework, which helps us to identify the behavioral questions we need to tackle in order to understand the practice. It can be described as a coordination game with two

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99 Accepts → Tipping equilibrium

Tips

Tippee Rejects → Tension

Tipper Expects → Tension Would accept Does not tip

Tippee

Does not expect Would reject → Non-tipping equilibrium

figure 6.1 Tree of tipping choices and outcomes

players – tipper and tippee – each of whom has two options: the tipper can choose whether to tip or not to tip and the tippee whether to accept or to reject the tip. There are four main possible outcomes – illustrated in Figure 6.1 – but in only two of these do the players’ choices form an equilibrium, which means that both players see no reason to change their chosen option insofar as the other player does not change his or hers. The equilibrium pairs occur either if the tipper decides to tip and the tippee accepts the tip, in which case we have a tipping equilibrium, or if the tipper does not tip when the tippee would reject the tip, which is the non-tipping equilibrium. In the other two cases, there is some tension that should eventually induce a change of behavior. In one of them the tipper tips and the tippee rejects the tip: in this case the tipper may learn not to tip again either that particular tippee or any other tippee she believes has the same preference. For instance, the tipper may infer that all tippees in the country or in the same occupation or establishment will not accept tips. With more encounters, the outcome will eventually shift to the non-tipping equilibrium whereby nobody tips because everyone expects that no one will accept a tip. This pair of actions is not often observed as they are a transient outcome due to mismatched expectations. They will be observed in situations in which the tipper and tippee belong to different communities with different practices and expectations: thus, for instance, we may expect tourist tippers to incur in such mistakes but not locals. Or we can expect nouveaux riches to tip occupations in which the workers’ dignity prescribe otherwise. No such case should, however, be found where the groups of tippers and tippees are sufficiently integrated. In the other out-of-equilibrium case, the tipper does not tip when the tippee would accept the tip. To establish how much tension this case generates, we need to answer a further question: whether the tippee also expected to be tipped – for one can accept a tip without necessarily expecting one. If the tippee does not expect the tip, he may be unconcerned when there is no tip and think this is undesirable but normal and there is nothing to be done about it; this can happen in domains in which tipping is sporadic and considered neither as something that one should or should not do. So even though this is not the

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best outcome from the tippee’s point of view, this case may persist as it does not lead to change. However, if the tippee also expects a tip, he will be disappointed, and possibly annoyed (the same reasoning could be applied to the size of the tip, but to keep matters simple, I rarely refer to tip sizes here). The tippee may learn to stop expecting a tip from this customer or from this type of customer, in which case the equilibrium shifts to a non-tipping state; or he may fight back and make remonstrations to the failed tipper. He may further try to devise ways to encourage the next customer to tip. We see envelopes left in hotel rooms by chambermaids with their name written on it, or notices flagging that service is not included or that gratuities are gladly accepted. However, even when the tippee expects a tip and takes action to encourage it, this action can still generate no change if the tipper has strong reasons not to tip. A tipper, while not being opposed to tipping, can fail to tip simply because she does not find any motivation to tip or has a contingent motivation not to tip; but she can also have a principled motivation never to tip. Consider now the tipper’s motives in choosing which action to take. An important conclusion we can reach on the basis of our coordination game is that, regardless of any other consideration, if the tipper believes the tippee will not, for whatever reason, accept the tip, she will not tip. This belief is a sufficient explanation for the persistence of a non-tipping equilibrium. In other words, it suffices to explain the motive that the tippee has not to accept a tip to explain a non-tipping equilibrium. One may conceive of situations in which the tipper may try to force a tip on the tippee, but these must surely be exceptions – for why should one pay more money to make the tippee less happy or, worse, offend or embarrass him, unless of course one wants to achieve precisely that result? This leaves us with two general points: 1. To make predictions on the emergence, rather than just the persistence, of a non-tipping equilibrium we need to explain why certain tippees prefer not to be tipped. Regardless of what exactly their motives are, a key related question is whether their dislike of tips is idiosyncratic or widely shared among tippees. A tippee who does not want to be tipped in a domain in which tips are rife would have to work hard at turning them down at each new transaction. He may establish a preference with customers who come to know him personally, but would have to summon a lot of energy to reject the tip from every well-meaning stranger – the cost of accepting may eventually prove lower than that of refusing and any social stigma attached to accepting tips weakens as tips become a widespread phenomenon. Tippees, in other words, can be expected to adjust to the prevailing convention even if, left to themselves, they might have chosen otherwise. The pressure will be toward conforming to the conventions of establishments, occupations, and even countries. Tipping is a quintessentially social practice in which one, whether a tipper or a tippee, cannot easily afford to stick out and is affected by what other people do. 2. While the belief that a tippee will not accept a tip is a sufficient reason for the tipper not to tip, the reverse is not true: if the tipper believes that the tippee

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would accept a tip the tipper can still decide not to give a tip. How does she decide? To explain the emergence of tipping, we need to understand not only the motives of the tippee to accept – which may be as trivial as preferring more money to less – but the motives of the tipper to part from her money and hand out a tip. One such motive may simply be that the tipper believes the tippee will not just accept but expects a tip, and, for reasons explored in section 2.4, she may not want to disappoint the tippee. Furthermore, what other tippers do could explain the persistence of a tipping equilibrium. For even without any specific reason to tip, one can tip simply because of converging expectations: everyone tips because everyone expects everyone else to tip. (I return to this in 2.4.) Tipping, in other words, can evolve into a suboptimal stable practice in which everyone would rather not tip (or not tip all the times or tip less than one ends up doing), but no one feels in a position to stop or adjust the tip size on one’s own. This chapter is mostly devoted to the second question, namely, how we can explain a tipping equilibrium from the point of view of the tipper. In the next two sections, I deal with a tipper’s motivations to tip when the tipper knows that a tip is accepted and possibly expected. In particular in section 2 I focus on selfinterested reasons and in section 3 on other-regarding motivations. In section 4 I deal with a tipper’s motivations never to tip regardless of the tippee’s expectations, and with the motives a tippee may have to refuse tips. The latter are important since predictions on countries or occupations in which there is no tipping can come from this side of the matter for, as I have argued, it suffices to explain why certain tippees do not accept tips to be able also to explain why tipping does not emerge.

2. motivations to tip: self-interest In this section, I discuss the motivations that a tipper may have to tip a tippee when she knows that the tippee will accept or expect a tip. It must be stressed from the start that motivations per se are neither rational nor irrational, for rationality refers to the means not to the ends that one plans to achieve. Whether or not tipping is rational depends on whether tipping is the best way to satisfy whatever motivation the tipper may have. In other words, one can have all sorts of motivations to tip – self-interest, reciprocity, or other-regarding motivations – which tipping may or may not be the best means to satisfy. So the question of the rationality of tipping traverses motivations rather than residing in any one of them. Some means may fail to be rational because they are based on false beliefs. For instance, some may tip thinking that they improve the service, although this is not true, or, as some have suggested,6 because they fear the tippees’ envy and believe that tipping allays envy and thus their fear. It is

6

For example, Foster, “The Anatomy of Envy,” and Lynn, “Neuroticism and the Prevalence of Tipping,” 137 138.

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doubtful whether paying others stops them from being envious, and this motivation could be based on a superstitious belief. 2.1. Self-Interest in One-Off Encounters Let us begin with arguably the simplest human motivation, self-interest. One straightforward reason to tip for self-interest would be in order to ensure a good or a better quality of service. But how this motive works depends on various conditions and beliefs. At a minimum, the tipper must believe that the tippee has discretion over the quality of service he can deliver. Where there is no discretion, we should not observe tipping motivated by self-interest (or, if we do, tipping would be irrational). The typical prediction of rational choice theorists is that in one-off encounters, a self-interested rational person should never tip. Still, we observe much tipping in one-off encounters, a fact that seems to contradict the theory’s assumptions on either self-interest as the dominant motive or on rationality. We tip taxi drivers, waiters in foreign countries, and tour guides whom we will never again meet. From the point of the theory, this is considered to be a puzzle. As Elster points out,7 it is puzzling in two ways: because the tippee cannot retaliate the next time as there isn’t a next time, and because the tipper knows, in cases in which there is no audience to the transaction as in a taxi ride, that there is no third party who might sustain tipping by some disapproving gesture. Whether the tipping in one-off encounters is puzzling, however, depends on a particular belief, even from the rational choice theory perspective. If the tipper believes (trusts) that the service will be good enough even in oneoff encounters, then she has no self-interested reason to tip for she is getting decent service anyway, so why pay more for it? But if the tipper does not have that trust, she could rationally decide to tip even in one-off encounters. People would tip to ensure good service in situation in which their default expectation is to receive bad service – they cannot trust the server to provide good service to everyone without some additional reward. Thus, if the quality of service is expected to be poor or highly variable, rational self-interested people should either credibly promise a tip or tip before service is delivered. While observing tips after service does not tell us much about the motives, observing tips handed out before service is a prima facie sign that the aim is to obtain good service.8 Only when the quality of service is expected to be either good enough or invariably bad should self-interested

7 8

Elster, Explaining Social Behavior, 367. If tipping before service is widespread, there will be an incentive to follow the practice, regardless of any other considerations, for fear of being singled out for bad service. The case is similar to that of house alarms or mafia protection: the more people have them, the more the people who do not have them become exposed to predators. These are all sub optimal cases in which “everyone runs as fast as he can only to remain in the same place.”

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rational tippers not tip in one-off encounters.9 It follows that in countries, occupations, and establishments in which there is less generalized trust we should observe more tipping driven by self-interest even in one-off encounters. Mark Starbuck was able to construct a test of this prediction.10 He used two different sources to establish whether tipping is frequent or rare by country – in one he assembled the tipping advice of five well-known online tour guides covering 160 countries; in the other he carried out a survey of 1,270 Englishspeaking adults from 30 countries. As for trust, he took the percentage of people who replied “yes” to the standard survey question “Most people can be trusted” from the World Value Survey. Data were available for 38 countries. He found that there was a substantial and significant negative correlation between whether tipping is frequent in a country and the level of trust (r = −0.48 in the first study and −0.66 in the second). And in both cases, the relation was robust to the introduction of various control variables, such as income inequality, and various indexes of democracy and human development. The tipping measures he used do not merely reflect tips in one-off encounters, but the results are certainly a good indication that distrust is strongly linked to tipping in any form. 2.2 Self-Interest in Repeated Encounters When envisaging repeated encounters with a tippee, a rational tipper could tip in one encounter to ensure good service in future encounters. This idea yields the following prediction: rational tippers motivated by self-interest will tip if they think they are going to come back. If we translate this prediction in terms of cross-national and cross-occupational differences, we should expect, ceteris paribus, more tips in countries and occupations in which there is a stable clientele patronizing the same establishments. Highly mobile situations should yield less tips as repeated encounters are proportionally fewer (this cannot be the whole story, though, considering that tipping in the United States, a very mobile country, is among the highest and most frequent on earth). This idea is typical of those who think in game theory terms and blurt it out as soon as the issue is discussed. Still, in theoretical terms, when closely inspected, this hypothesis reveals itself to be resting on richer assumptions than it seems at first. The tipper that reasons in those terms must also believe that denying a tip now induces the tippee to provide a lower quality service next time. This belief is 9

10

In this case, tipping and bribing come close. The difference concerns only who the tippee is and the nature of his discretion. If it is someone who by contract has a duty to perform a good service but willfully refrains from doing so unless he gets extra money from the customer, then tipping and bribery are exactly the same. More precisely, tipping coincides with one form of bribing in which one pays extra for a good service to which one is entitled to without paying extra. People can bribe to get others to do what they should not do, but they can also bribe to get people to do what they should do, as in the case of tipping aimed at getting good service. Also, the higher the frequency of bribery, the higher we should expect the frequency of tipping to be. Starbuck, A Comparative Study of Tipping Practices and Attitudes, 114 119; 141 147.

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not however invariably true. First, it is true only if the tippee can correctly re-identify tippers in future encounters and remember whether or not they tipped the previous time. This implies that in larger establishments or in those that have high employee turnover, the chances of being rewarded or punished for having tipped or not tipped in the past are slim, so a rational tipper should not tip if her aim is to ensure good service in future encounters; these situation are de facto identical to one-off encounters. If she does tip – as we often do even in such establishments – it means that she is either irrational or has motivations similar to those that lead us to tip in one-off encounters (which may or may not differ from self-interest). Next, and more importantly, I find it odd that our game theorists do not look at repeated interactions also from the perspective of the tippee. If they did, they might be surprised: if the tippee knows that the tipper could, if she chose to, come back, the tippee has a reason to provide good service to encourage the customer to return regardless of tips. With even a minimum of competition from other providers, this should be the case. Expecting this, a self-interested tipper should rationally not tip in repeated encounters because she will get good service anyway. (In fact, savvy customers hint, truthfully or otherwise, that if they get good service they may come back.) This is more likely the case if the tippee is selfemployed rather than salaried for he will have a stronger interest in encouraging customers to return. This is also the case when the employer succeeds in aligning the employee’s interests to his or her own and the tipper knows this. In these cases, the repetition of the encounter, contrary to game theorists’ knee-jerk wisdom, should induce non-tipping. The predictions should thus be qualified: first, repeated encounters with the self-employed should generate less tipping. Second, repeated encounters with employees would by contrast generate tipping in repeated encounters if and only if one believes that denying a tip now induces the tippee to provide a lower quality service next time, and, if it is true, tipping would be rational. However, much would depend on what the competition does, as establishments that, for comparable prices, induce employees to provide good service regardless of tips would win customers over from establishments that induce employees to reward good tippers and punish bad ones. As far as I know, the prediction that people are more likely to tip when in repeated interactions has not been tested taking these conditions into account. This may be one reason why the evidence is inconclusive. In a meta-analysis of 13 studies involving 2,547 dining parties from 20 different restaurants, Lynn and McCall found that regular restaurant customers leave better than average tips to waiters than non-regular customers.11 This does not mean that they tip to get good service next time; they may simply know the waiters and feel greater sympathy for them (see section 3.2). Several other studies have found no relation. For example, in a 1996 national telephone survey carried out for 11

Lynn and McCall, “Gratitude and Gratuity.”

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Market Facts, 1,000 American adults were asked to indicate out of five reasons why they tip seven professions; “to get good service next time” was the least favored explanation of the five and was chosen on average by only 5.5 percent of respondents.12 2.3 Other Self-Interested Reasons to Tip We can conceive of at least three further self-interested motives for tipping even in one-off encounters. The first is related to improving an ancillary quality of service, namely the tippee’s discretion. One might trust the discretion of lawyers and doctors, but doubt that of prostitutes and beauticians. If so, people should tip more frequently those occupations that make the tippee privy to information about the tipper that the tipper does not wish to see disclosed. (The tragicomic vicissitudes of Silvio Berlusconi and his colorful coterie of harlots and lawyers fit this prediction like a glove!) The other two self-interested reasons that I can see are unrelated to improving quality of service; they do not have even much to do with the relation between the tipper and the tippee, but with the relation between the tipper and a third party. Here the tipping game stops being a mere two-person affair. The tipper may want: 1. to signal his generosity to a third party. If this were the case, people should not tip when receiving a service alone or in the presence of either anonymous third parties or a party that knows them well anyway; they should tip only when they are with someone they want to impress. Needless to say, we observe lots of people tipping when alone or with people they know well and have no need to impress, which suggests that this motivation, if it does have any explanatory power, cannot do much of the work. It could, however, yield narrower predictions; for instance, in countries or professions in which, say, dining is part of professional wheeling and dealing and through which diners assess each other’s qualities, tipping generously may be driven by the aim of signaling one’s qualities. (By definition, tips would occur only in situations in which there is a third party present and cannot, thus, be generalized to explain tipping practices as a whole, much of which occurs without that condition.) 2. to signal to himself that he is a generous guy, cultivate his good character that is, a hypothesis put forward by Robert Frank.13 Frank reasons that honesty is a good trait to have in business – a trait whose absence is not so easy to hide from savvy business partners who may be able to detect it. It is also, he contends, a trait that decays 12 13

See Starbuck, A Comparative Study of Tipping Practices and Attitudes, 53 54, table 3.1. Frank, Passions within Reasons, 18.

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if one allows oneself to act opportunistically even occasionally, as when one decides not to tip an expectant waiter who did his job properly. This yields a curious prediction: people who demonstrate to themselves every day that they are generous – by doing voluntary work or working underpaid for charities – would have less need to tip. Since they are constantly engaged in honesty-building gymnastics, they can afford, as it were, not to give tips. Paradoxically, it would be people in cutthroat professions, in which being thought of as trustworthy is also particularly important, who would be more likely to tip. Mobsters, bankers, and lawyers should be more generous tippers than Oxfam employees. 2.4 Social Conventions As I stated earlier, the belief that a tippee expects a tip may suffice to lead people to tip. The reason may simply be to avoid the lesser of two evils as, in the simplest of cases, the tipper tips because of defensive self-interest: 1. she may want to avoid nasty looks or harassment by disappointed tippees (notice that this is different from not wanting to disappoint for other-regarding reasons out of empathy, say). Rarely if ever, however, do we decide whether to tip in isolation. A more common reason that leads people to tip is a belief that tipping is what is generally expected in a particular occupation or social milieu, not just because of the idiosyncratic expectation of a single tippee. The belief that tips are expected in a given milieu can be derived from observing or somehow knowing that other people typically tip, and that because of this, if nothing else, tippees in that milieu expect a tip. Thus tipping comes as a result of the joint desire of not disappointing the tippee and of conforming to what others do. Believing that only one particular tippee expects a tip may not generate enough pressure to lead people to tip for it weakens the legitimacy of the tippee’s expectation and thus of his disappointment. But when the belief that one tippee’s expectation is the result of the expectation of all tippees of that type and that the expectation is generally fulfilled, the pressure on the tipper grows. Tippers typically want 2. to avoid not just the nasty looks, but also the negative emotions of embarrassment or shame they may suffer toward tippees or toward observing third parties or both. In this situation, if service is decent and one does not have a strong reason not to tip, one tips. If not tipping causes embarrassment or shame, tipping is likely to have evolved into a social norm, which one feels compelled to follow if the sanctions that a violation triggers, in emotional or practical terms, cost more than the tip. Tipping in this case would not signal

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anything to others, but not tipping would be a sign that one is mean or that does not care about social norms and conventions, so one tips as the default option. Non-tipping could even be perceived as a breach of an implicit contract, whereby hardworking tippees who are used to being tipped by nearly everyone, expect that good service will be followed by a tip. 3. Tippers may also not want to stick out and tip for purely conformist reasons. This is similar to wearing a tie, when one habitually does not wear a tie, not because one would feel embarrassed by not having one, but because one knows one is going to a place in which everyone does wear a tie, and one does not want to attract attention by being the odd one out. Self-interest, in this minimalist sense, can thus make people comply with the social norm, even though it cannot explain why the norm is there in the first place. In other words, complying with tipping norms is not a generative explanation but a derived one, which can explain why, once a norm is there, people keep it going and the tipping equilibrium persists regardless of primary reasons. (In fact, it can persist even if people would rather not tip. “In the UK, an NOP poll for the Financial Mail showed that 13% of people leave a gratuity even if the service has been bad, because they do not want to look mean or make a fuss.”14) But it does a little more than that: once generalized tipping occurs and become a norm, all other primary motivations may become redundant in explaining why every new tipper tips. If these other motivations do still play a part, they do so by affecting further adjustments, so one may tip either more than what is conventionally expected – for whatever reason, self-interest, reciprocity, or altruism – or less (or nothing) in case one wants to punish for very bad service and feels justified not to comply with the norm (see section 3.1). The persistence of widespread tipping may be sustained by all three reasons – 1, 2, and 3 working together – though each is a distinct and sufficient reason. To test whether “1 versus 2 or 3” prevails, one could devise a situation in which the tippee cannot harass or give nasty looks to non-tipping customers and compare that with an otherwise identical situation in which the tippee can behave that way. For instance, a prediction that can be tested observing occupational differences is the following: were one to find that room cleaners, whom hotel customers do not see much of, are not tipped as much as other hotel staff who are in close proximity when the tip is given, such as waiters or porters, one could conclude that the difference is consistent with the fear of being harassed or shamed. We have some evidence consistent with this prediction. Ofer Azar found that tipping is positively correlated with “the closeness between the worker

14

Starbuck, A Comparative Study of Tipping Practices and Attitudes, 63.

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and the consumer.”15 Mark Starbuck replicated the finding that occupations which are hidden from view draw fewer tips, while those that come face to face with customers have more tips.16 These findings, while consistent with the idea that people want to avoid being harassed, are also consistent with more positive feelings triggered by personal contact, such as empathy and sympathy (see section 3.2). I consider 1, 2, and 3 as the most plausible explanations of the persistence of generalized tipping – as evidence consider the fact that most people when traveling to new places are keenly interested to find out what it is that people do in terms of tipping and what it is that servers expect. The so-called tipping model can be applied to tipping behavior because tipping is frequency dependent: the probability that anyone tips is positively affected by the frequency of tipping in the relevant environment. (Notice that the same mechanisms could apply to the amounts expected and not just to whether a tip of any amount is expected. In countries in which tipping is universal and occurs around set percentages, the most powerful explanation is almost certainly the presence of social conventions.)

3. motivations to tip: other-regarding reasons 3.1 Reciprocity Reciprocity is a very different motivation from self-interest. Unlike self-interest, reciprocity is backward looking rather than forward looking. It predicts that people tip not because they want to obtain good service, now or in the future, or to signal something to themselves or others, or to avoid nasty looks or embarrassment, but in order to reward good service after it has been obtained: they follow the rule “you do something good for me and I do something good for you.” This is positive reciprocity. In the negative case, if you give me not-so-good service I will not tip. The reciprocity rule makes sense if a certain level of good service is not expected as a matter of course and when the tippee has discretion over quality. Reciprocity is perfectly compatible with tipping rationally even in one-off encounters, for if the intention is to reward and the tippee is prepared to accept, a tip counts as a good signal of gratitude and appreciation. The idea of tips as rewards has intuitive appeal as many people, myself included, tip taxi drivers when they help passengers with their luggage but not otherwise. Sometimes, however, if I have no luggage I may still tip, which suggests that either I reward some other good things the driver did, such as driving smoothly or being courteous, or that I have a different motivation unrelated to reciprocity. 15 16

Azar, “Who Do We Tip and Why?” Starbuck, A Comparative Study of Tipping Practices and Attitudes, 174 175.

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The expectation that people tip because of reciprocity is an incentive to deliver good service even in one-off situations, while the expectation that tips come from self-interest would not have that effect because a strictly self-interested customer will just not tip even if she gets good service. This is paradoxical because selfinterest ends up being better served by not being self-interested. Tipping driven by reciprocity also has a positive externality, for future tippers will be more likely to be better served the more the tippee has been tipped in the past whenever he has provided good service, and thus the more he can rely on being tipped at the end if he does that again. Several economists have argued that tips are a more efficient way to improve the quality of service than including the value of tips in wages because tippees make part of their earnings directly conditional of the quality of their service, which could be more easily monitored by customers than by employers.17 This argument makes tips part of an “implicit contract” for the purpose of enhancing efficiency but, as Elster points out, is “merely a piece of unsupported functionalism.”18 Azar also found that tipping prevalence is negatively correlated with consumer’s monitoring ability across different occupations, which “implies that economic efficiency does not seem to be the reason for the creation of tipping.”19 Still, though not for that reason, customers’ tips could improve efficiency even in one-off exchanges as a by-product of reciprocity, which is not aimed at getting anything, for the tipper tips (does not tip) purely to reward (to punish) the quality of service she has already received with no view of the future. There is much evidence that people tip “to reward good service,” and that reciprocity, much more than self-interest, is a primary motivation. For example, in the previously mentioned survey carried out for Market Facts in 1996, out of the five reasons offered to U.S. subjects as to why they tip seven professions, to reward good service comes was chosen as the main reason by an average of 42.3 percent of respondents.20 (A caveat on taking what people say about why they tip at face value: Michael Lynn, perhaps the most devoted student of tipping, surveyed 374 waitresses and found that those with larger breasts, blonde hair, and slimmer bodies received higher tips. He also found that, even though many customers say they reward service, quality of service has less than a 2 percent effect on the tip size.)21 Notice that if we found that equally good service in different occupations or countries is tipped at different levels of generosity, as we do indeed find, it follows that we cannot explain variations of tipping amounts across occupations 17

18 19 20

21

See, for instance, Ben Zion and Karni, “Tip Payments and Quality of Service”; Bodvarsson and Gibson,“Economics and Restaurant Gratuities”; Conlin et al., “The Norm of Restaurant Tipping,” Sisk and Gallick, “Tips and Commissions.” Elster, Explaining Social Behavior, 368. Azar, “Who Do We Tip and Why?” 11. Starbuck, A Comparative Study of Tipping Practices and Attitudes, 54; see also 85 88 for a review of the evidence on reciprocity. Lynn, “Determinants and Consequences of Female Attractiveness and Sexiness,” 737 745.

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or countries solely by reciprocity. This suggests that there are occupations, or country-specific conventions, of the type described in section 2.4, within which other motivations such as reciprocity can manifest themselves. So, I may like to tip to reward good service, but the size of what is an acceptable reward that would signal gratitude is set by social conventions: in Italy I tip with some loose change, in the UK I tip 10 percent, and in the United States 15 percent. 3.2 Sympathy, Empathy, and Fairness This family of motivations posits that people tip because of some special regard they have for the tippee, either as an individual or as a member of a category. Sympathy, understood as an ad personam sentiment, could lead people to tip those they like, individuals who are charming or flirtatious, over and above the strict quality of service that they dispense, or who manifest some special need or trait. Motivations of this kind would not lead someone who gets bad service to tip, but if service is good enough, they may lead to larger tips. There is quite a lot of evidence that mechanisms of this kind support tip size, and that workers who are better able to adjust to their customers’ characteristics are rewarded with larger tips.22 Empathy or fairness, understood more as category than as person-based sentiments, could trigger greater generosity in tipping from people who want to help those who are poorer than they are. Everything else the same, if this were the case, we should observe more tipping in countries with greater income inequality and in occupations that yield lower incomes (e.g., shoe shiners, room cleaners), as well as in occupations that tend to serve richer people; so, while every man goes to the barber every now and then or buys a coffee in a bar, only richer men patronize casinos or buy high-class sexual services, thus croupiers and prostitutes should be tipped more often and generously than barbers and barmen. Azar’s study found that worker’s income is negatively, strongly, and significantly correlated with tipping and also that the consumer’s income is positively correlated with tipping (albeit not as significantly), suggesting that tipping is partly due “to empathy and compassion for the low-income worker.”23 Starbuck found that waiters’ tips are larger the higher is the Gini coefficient (which measures inequality in income distribution), and “that occupational tipping prevalence increases as an occupation’s ISEI [International Socio-Economic Index of Occupational Status] decreased.”24 Conversely, evidence collected by Zvi Schwartz and Eli Cohen shows that the number of tipped occupations is lower in countries, such as the Scandinavian ones, in which the tax burden as a proportion of GDP is higher, suggesting that where income redistribution is fairer,

22 23 24

See Starbuck, A Comparative Study of Tipping Practices and Attitudes, 73. Azar, “Who Do We Tip and Why?” 12. Starbuck, A Comparative Study of Tipping Practices and Attitudes, 169, 175.

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the inclination to compensate with individual transfers is weaker.25 Similarly, “New Zealanders do not believe that they have to tip service workers because they understand that they received good wages.”26 A different trigger of generosity may be linked not so much to a generic sense of due fairness toward lower-income workers as to the specific knowledge that their employers take tippers’ generosity into account and adjust salaries downward. Knowing that employees’ income will be increased by tips, one may feel obliged to tip not to let employees down. If this were the case, this effect should be found only in domains in which employers follow this policy and to matter only for tips given to employees and not to the self-employed. The same survey of U.S. citizens I mentioned before found that “workers depend on the money” is the second most important reason indicated for why people tip, chosen by 25 percent of respondents in the sample. Still another trigger of fairness-driven tipping could be due to contingent inequalities, for, in some cases, tippees work while tippers are having fun. This, however, rather than by arousing empathy, could work by creating a sense of guilt. In fact, the importance of guilt could be more general. In countries in which there is at the same time a marked inequality between tippers and tippees and a widespread equality ethos, a belief that humans are or should be treated in a fundamentally equal way, coming in contact with people significantly poorer than one is could trigger discomfort and ultimately a sense of guilt for being better off than they are, rather than just empathy or altruism. In countries or historical times in which inequality is perceived as a fact of nature, this effect would not emerge – one does not feel guilty about not tipping slaves. This discomfort could be allayed by giving tips. Conversely, tips are less likely to be observed in countries in which a strong equality ethos is found alongside real income equality – and indeed they are rarer in Scandinavia countries. The predictions are similar to those one can derive from other-regarding motivations and hard to tell apart using unsophisticated empirical observations, as one would need to control for other-regarding motivations. If the latter were the explanation, for instance, one should see a strong correlation between tip giving and charity giving, which one would not see if by contrast the mechanism was guilt induced by proximity with poorer people. In conclusion, economic inequalities as well as the social norms and values that we share about equality or fairness are strongly involved in our tipping decisions, whether by arousing empathy or guilt. For instance, we tend not to tip people in occupations that we consider as peers or superior in income or status to us – we do not normally tip doctors, schoolteachers, or accountants. This is not invariably the case, however, and we get intriguing exceptions: on the one hand,

25 26

Schwartz and Cohen, “Tipping and the Nation’s Tax Burden,” 135 147. Starbuck, A Comparative Study of Tipping Practices and Attitudes, 79.

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we do not tip flight attendants or nurses – at most we give gifts to the latter; on the other hand, an old lady on a meagre pension can still tip a taxi driver, and a working class family out for dinner can be generous with their waiters. There are intervening mechanisms that govern our tipping decisions, such as follow the convention lest we offend, be generous to those who are helpful, empathize with those who share your modest lot if they just happen to be working while we enjoy ourselves.

4. motivations never to tip or to accept tips One can experience one or the other of the preceding motives to tip, but still abstain from tipping simply because one knows that the tippee would not accept the tip. This is the simplest motivation not to tip – we generally do not want to offend people, and tips do not have the same meaning for everyone. For some people, a tip may be an expression of gratitude while for others it amounts to humiliating charity. What interests me here, however, is that a person can choose to refrain from tipping even if she can perfectly well understand one or more of the motivations to tip – say that she knows that service workers are underpaid or that good service deserves to be rewarded – because she believes that tipping itself is undesirable or unjust, regardless of whether the tippee accepts or expects a tip. People, in other words, can entertain one or more of the following beliefs that override any tipping motivations: (i) workers should do their duty anyway and not expect any extra reward for it; (ii) tips are like bribes, or queue-jumping – those who seek to improve their own personal treatment are unfair toward other customers who may receive a poorer service because of it; (iii) it is unfair to leave service workers’ income at the mercy of discretionary payments rather than of secure contractual arrangements, and by giving tips one encourages this uncertainty and introduces inequalities among servers; (iv) tipping is a demeaning practice that stresses inequality among people who are fundamentally equal; it is, in other words, a patronizing practice that even if well intentioned stresses status differences. A tipper can believe one or more of these motivations and not tip, regardless of the tippee’s belief, and there are examples for each of those beliefs of people who manifest them and act accordingly. Those beliefs can give the tipper a motive not to tip even at the cost of disappointing tippees, thus leading to an out-of-equilibrium situation. (And I would not put it past some humans to cloak plain old stinginess under any of these principled beliefs.) If the tipper experiences some tension between any of those beliefs and other considerations in favor of tipping, we cannot predict

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whether the outcome will be tipping or not tipping as it depends on the relative strength of those beliefs. For instance, it is much easier to abide by those beliefs if we know that others do that too, and it is highly likely that in societies with a high frequency of tipping there are many people who “falsify their preferences,” à la Timur Kuran, by tipping when they would rather not do it. On their part, tippees may believe that they should never accept tips for reasons that mirror those of the inveterate non-tippers, especially beliefs (iii) and (iv). They could dislike having their income depend on the unreliable generosity of customers, or to have to ingratiate themselves to customers hoping for a tip; or they see themselves as fundamentally equal to the tipper and regard a tip as an undesirable way of stressing social differences. They may think it is humiliating – something that should not be done among equals. Equals exchange gifts in kind or favors rather than money. Like tippers, tippees are more likely to have these beliefs in conditions of economic equality, real or ideological, or in domains in which money is still permeated with pre-modern values – a means not suitable to reward an honorable person. Tippees, rather than that belief, could also have a second order belief and think that others perceive being tipped as humiliating. They would thus not want to be seen accepting tips for that would signal that they accept being humiliated. In this case, being tipped would be felt as secretly desirable but publicly shameful. The prediction is that some tipping will still be observed even in countries in which tipping is discouraged if secrecy is preserved. In Japan, where tips are generally discouraged, some tips still exchange hands, but discreetly hidden in envelopes.

conclusions All too often social scientists take the social importance of the phenomenon they study as a measure of the relevance of the theories that one requires to explain it. Clearly, studying complex phenomena of great welfare relevance is a good thing, but it does not follow that simpler phenomena do not require a very rich theoretical framework to be explained. In fact, there is much to be said in favor of studying simpler phenomena, for they can make it easier to test and refine our theories. Even though tipping is regarded as a marginal economic transaction, which is not so true, it can be driven by many of our fundamental behavioral dispositions, and it is simple enough to enable us to study them in natural settings. References Azar O. H. 2005. “Who Do We Tip and Why? An Empirical Investigation.” Applied Economics 37, no. 16: 1871 1879. Azar, O. H. 2009. “Incentives and Service Quality in the Restaurant Industry: The Tipping Service Puzzle.” Applied Economics 41, no. 15: 1917 1927.

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Ben Zion, U., and E. Karni. 1977. “Tip Payments and Quality of Service.” In Essays in Labor Market Analysis, edited by O. Ashenfelter and W. Oates. New York: John Wiley & Sons. Bodvarsson, O., and W. Gibson. 1997. “Economics and Restaurant Gratuities: Determining Tip Rates.” American Journal of Economics and Sociology 56, no. 2: 187 203. Conlin, M., M. Lynn and T. O’Donahue. 2003. “The Norm of Restaurant Tipping” Journal of Economic Behavior and Organization 52: 297 321. Elster, Jon. 2007. Explaining Social Behavior. Cambridge: Cambridge University Press. Foster, G. 1972. “The Anatomy of Envy: A Study of Symbolic Behaviour.” Current Anthropology 13, no. 2: 165 202. Frank, Robert. 1988. Passions within Reasons. New York: Norton. Lynn, M. 1994. “Neuroticism and the Prevalence of Tipping: A Cross Country Study.” Personality and Individual Differences 17, no. 1: 137 138. Lynn, M. 2009. “Determinants and Consequences of Female Attractiveness and Sexiness: Realistic Tests with Restaurant Waitresses.” Archives of Sexual Behavior 38: 737 745. Lynn, M., and M. McCall. 2000. “Gratitude and Gratuity: A Meta analysis of Research on the Service Tipping Relationship.” Journal of Socio Economics 29: 203 214. Lynn, M., and K. Mynier. 1993. “Effect of Server Posture on Restaurant Tipping.” Journal of Applied Social Psychology 23, no. 8: 678 685. Schmitt, D. 1985. “Tips: The Mainstay of Many Hotel Workers’ Pay.” Monthly Labor Review 108, no. 7: 50 51. Schwartz Z., and E. Cohen. 1999. “Tipping and the Nation’s Tax Burden: A Cross Country Study.” Anatolia 10, no. 2: 135 147. Sisk, D., and E. Gallick. 1985. “Tips and Commissions: A Study of Economic Contracting.” Working paper no. 125. Bureau of Economics, Federal Trade Commission, Washington, DC. Starbuck, Mark. 2011. A Comparative Study of Tipping Practices and Attitudes. DPhil thesis. University of Oxford.

7 A Social-Psychological Theory for Female Suicide Bombings Julia Maskivker

In areas where suicide bombings occur, political and religious leaders have taken advantage of national-religious conflict by encouraging women to engage in the political-religious (terrorist) struggle. For example, Yasser Arafat encouraged the conservative religious movements jihad and Hamas to accept women into their ranks. Likewise, the Tamil leader Vellupillai Prabhakaran in Sri Lanka, and the Wahhabi rebels in Chechnya, for example, persuaded their organizations or groups of followers to allow women to participate in terrorist missions. Although these strategies appear to reflect a structural (positive) change in gender relations within these societies, alternative explanations are equally, if not more, compelling. Although it is clear through examining the data that women have become more active in suicide bombing missions in recent years, there is a relative dearth of research done on the subject of female suicide bombings searching for femaleexclusive reasons. With this surge in female participation, it has become extremely important to analyze the root causes in order to better understand the changing dynamics of political violence and how much of it can in fact be solely attributed to politics. In this chapter, I aim to delve deeper into the topic of female suicide bombings through determining what cultural and psychological factors contribute to women’s decisions to act as human bombs. One common explanation of female participation in terrorism describes female involvement in violent practices as mainly a tactical strategy. Because of commonly held gender stereotypes, women are generally not seen as threatening agents that would launch an attack. They are traditionally believed to be protectors of life and peacemakers rather than murderers, and therefore, arouse less suspicion. Additionally, it has proven to be easier to disguise bombs under the pretense of pregnancy, and the cultural taboo of violating a woman’s personal space and intimacy leads to less thorough searches in airports and checkpoints.1 However, with the increasing number of female suicide bombers, 1

Bloom, Dying to Kill.

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it appears that this advantage would be declining; therefore, the number of female suicide bombers would also decline correspondingly. But this does not seem to be happening. Additionally, if female participation were purely tactical, it would then be logical that women would be more actively recruited for such missions, when in fact a higher percentage of women are proactive in their participation than men.2 Therefore, while perhaps this explanation was more relevant when female participation first began, it appears that with time new causes need to be explored. Other explanations do not differentiate between male and female motivations for becoming suicide bombers, alluding to reasons such as nationalism and religiosity as primary causes for both groups. While my account does not completely disregard these factors in women’s decisions, I argue that a strongly gendered cultural environment results in different stresses put upon men and women and, therefore, leads to different motivations behind becoming the perpetrators of these acts. Most of the suicide bombings attributed to more nationalistic causes are linked to liberation organizations, such as the Palestinian Liberation Organization (PLO) and Hamas. However, women find little room for participation within these organizations, and almost never in the prestigious higher ranks. This fact also seems to counter the proposed idea that women obtain equality in their decisions to become suicide bombers. There is a relative lack of mobility for females within the major organizations that promote, openly or not, suicide missions. Therefore, a smaller percentage of women than men can prima facie be identified as having purely religious or nationalistic reasons.3 Although all suicide missions have much in common, the heart of my argument is that women become suicide bombers for gender-specific reasons that are related to their beliefs as women, and to the conditions under which they (qua women) live in particular societies. My main claim is that, within certain cultural environments, notions of gender supply the psychological incentives for women to become suicide bombers. Gender involves an array of beliefs, stereotypes, and behavioral norms that, to different degrees, shape personal experience by influencing motivation. My basic hypothesis is that this shaping process plays an important role in a woman’s decision to become a human bomb. I claim that the social disapproval that follows a woman’s behavioral “deviations” activates a psychological mechanism that mediates between the woman’s raw emotion caused by her inability to meet society’s expectations, on the one hand, and the resolve to become a suicide bomber, on the other. This is a mechanism triggered by cognitive dissonance. This chapter aims to flesh out the shape and nature of this psychological mechanism. When they become suicide bombers, women (unconsciously) exchange the degraded status of the woman who failed

2 3

Jacques and Taylor, 2008. Ibid.

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to uphold dominant gender norms for the higher status of a martyr. I call this suggestion the “self-redemption hypothesis.”4 The chapter draws on Jon Elster’s conceptualization of social mechanisms to provide a plausible (yet not conclusive) explanation for female suicide bombings. The nature of this account is different from otherwise traditional statistical/quantitative approaches to explanation in the social sciences. Through a mechanism-based approach such as Elster’s, one can investigate the micro-foundations of social behavior. It is important to understand that this micro-approach does not entail establishing the certainty of a causal chain. Mechanisms differ in this respect from laws. Thus, in the case at hand, my selfredemption hypothesis (the mechanism) does not establish that if a woman perpetrated a suicide bombing, then, she must have been motivated by selfredemption. It only establishes that she could have been motivated by it. Elster’s own words may help us see the difference: “We should understand a mechanism as intermediate between laws and descriptions. Roughly speaking, mechanisms are frequently occurring and easily recognizable causal patterns that are triggered under generally unknown conditions or with indeterminate consequences. They allow us to explain but not to predict.”5 An example from George Vaillant gives a flavor of the idea: “Perhaps for every child who becomes alcoholic in response to an alcoholic environment, another eschews alcohol in response to the same environment. Both reactions embody mechanisms: doing what your parents do and doing the opposite of what they do. We cannot tell ahead of time what will become of the child of an alcoholic, but if he or she turns out either a teetotaler or an alcoholic, we may suspect we know why.”6 Of course, mechanisms can be more complex than this trivial example, but the illustration encapsulates in a very illuminating way how the mechanismbased approach differs from the traditional statistical approach to explanation/ prediction. Elster talks about “indeterminate conditions” that trigger mechanisms. It is my goal in this chapter to shed light on one of the possible conditions that may trigger a mechanism leading to suicide missions in women. These possible conditions are certain cultural and social gender norms that affect women profoundly in a different manner than they affect men. The specific way in which those gender norms affect women may explain why some women may decide to become perpetrators of suicide bombings under circumstances propitiating this type of attack (i.e., war zones, military invasion, ethnic/ religious

4

5 6

I should clarify that my argument is not an essentialist one: I am not claiming that when it comes to explaining terrorist behavior, women are radically different, psychologically speaking, than men. Rather, the claim is that elements of the socio cultural environment in which women are situated are biased against them, in that these environments impose stringent norms of conduct and expectations that do not apply equally to men. Elster, “A Plea for Mechanisms,” 45. Vaillant, The Natural History of Alcoholism, 65.

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conflict). The mechanism-based approach suggests an explanation but does not establish certainty or near certainty. The differential impact in daily life that gender norms have among men and women in the geographical areas where female suicide bombings have more assiduously occurred explains why I selected a sample of all women. This differential impact will be described throughout the chapter. The sample does not reflect selection bias (i.e., the problem of selecting on the dependent variable); it reflects this basic difference in impact, which one has reason to believe may influence choices women make or omit to make.

the self-redemption hypothesis The cognitive dissonance explanation for female suicide bombing is based on the assumption that female suicide killings are associated with certain deeply rooted emotions that are stimulated by the violation of gender norms. The woman herself, or a male third party, may have violated these social norms. The violation produces a desire in the woman to remedy the fault in order to redeem her image and that of her family (especially of her male relatives). The self-redemption hypothesis implies that the main psychological mechanism involved in generating motivation to become a martyr is transmutation.7 The function of transmutation is to reduce the cognitive dissonance between incompatible beliefs or values by transforming one’s beliefs or values. “Cognitive dissonance” is a psychological term describing the uncomfortable tension that may result from simultaneously holding conflicting thoughts or beliefs (cognitions), or from engaging in behavior that conflicts with one’s beliefs. More broadly, it also refers to attempts to reduce the discomfort of conflicting thoughts, beliefs and actions.8 The theory of cognitive dissonance states that contradicting cognitions serve as a driving force that compels the mind to acquire or invent new thoughts or beliefs, or to modify existing beliefs, so as to reduce the amount of dissonance (conflict) between cognitions. Experiments have attempted to quantify this drive examining how beliefs often change to match behavior when beliefs and behavior are in conflict.9 As prominent American social psychologist Aronson explains, cognitive dissonance is most powerful when it is about our self-image.10 That is to say, dissonance is often strong when we believe something about ourselves and then do something that contradicts that belief. If I believe I am a good person but I do something morally reproachable, then the discomfort that I feel as a result of my actions could be referred to, scientifically, as cognitive dissonance. I wish to propose that cognitive dissonance may characterize (some cases of) female 7 8 9 10

The concept was coined by Elster, Alchemies of the Mind. Festinger, A Theory of Cognitive Dissonance. Frey et al., Experiments with People. Aronson, Readings about the Social Animal.

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suicide bombings. In particular, I claim that dissonance arises when a woman cannot assimilate the belief that her “worth” as a woman has been negatively affected by her actions or the actions of others. This belief is in tension with previous beliefs that the woman is “respectable.” As work on the psychology of suicide terrorism shows,11 principles of cognitive dissonance offer an interesting lens through which to look at a complex phenomenon, in the face of other hypotheses’ lack of conclusiveness. For example, explanations of how hate and frustration catalyze terrorism and other forms of mass violence cannot completely account for suicide bombings. Case studies of terrorists have shown that a high percentage of terrorists come from upper- or middle-class families in which basic needs fulfillment is not a concern.12 My arguments do not suggest that all women who see themselves affected by social transgression are going to volunteer as human bombs. Rather, my thesis suggests that the ability to reduce cognitive dissonance distinguishes those who decide to engage in suicide missions from those who do not make that radical choice. Some women affected by the transgression of a social norm will decide to repress the discomfort resulting from the realization that their worth has decreased as a result of the transgression. Because of the availability of suicide as a redemptive tool in the societies under study, it is possible that many of those women will see in suicide missions a perfect remedy to mend their hurt self-esteem. Others, however, may simply live unhappily with the dissonance or may opt for alternative ways to do away with it. Although it is empirically difficult to determine who will take any of these routes and why, one can see that my explanation for female suicide missions is plausible based on the Elsterian conception of “mechanism.” This chapter suggests that when suffering becomes psychologically unbearable, many women may (unconsciously) seek to atone for their destroyed self-respect by securing the high status conferred by martyrdom and nationalistic sacrifice.13 Engaging in suicide terrorism transforms a sense of worthlessness into a sense of glory through death for a cause the public generally finds acceptable. I do not argue that all women affected by social transgression will become human bombs but that some may based on suggestive evidence. In the cases of female suicide bombers motivated by a desire to redeem themselves after a breach of reputation, transmutation is an instance of (unconscious) self-serving bias. The assumption is that few women like to think of themselves as having a poor reputation, especially when reputation is such a crucial element of social status and respect. In order to understand why this reaction is so drastic, it may be helpful to resort to the concept of “stigma.”

11 12 13

Kohn Maikovich, “A New Understanding of Terrorism Using Cognitive Dissonance Principles.” Gambetta, 2004; Stout, 2002. This intention may perfectly be conscious, but in that case, cognitive dissonance would not play a role.

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Stigma can be described as a label that associates a person to a set of unwanted characteristics that form a stereotype.14 In the case of female suicide bombers, the “sexually impure woman” and the “unfit for motherhoodwoman” are labels that apply to women after the latter fail to live up to certain expectations and norms that take sexual purity and motherhood as central elements of womanhood. Furthermore, we can think of two categories of stigma. Falk defines “existential stigma” as stigma deriving from a condition which the target of the stigma either did not cause or over which he or she has little control. He defines “achieved stigma” as stigma that is earned because of conduct and/or because the individual contributed heavily to attaining the stigma in question.15 My selfredemption hypothesis for female suicide bombings encompasses these two types of stigma. The case studies provided here will attest to instances in which women’s reputations get shattered both because the woman herself has violated some social prescription (via extra-marital sexual activity, for example), or because a third party, usually a male, has tainted her sexual purity (through rape or other forms of sexual assault). Existential stigma may also ensue upon a woman’s inability to live up to generalized expectations associated with her gender, as when she finds herself infertile or a widow. Generally, the stigma associated with a bad reputation can be an unbearable feeling capable not only of tainting other people’s concepts of our personal worth, but also of fatally damaging a positive self-image. Desperate reasons to avoid falling prey to stigma are all too human in the face of the all-too-human need to be accepted by one’s community of belonging.

method In exploring the gender dynamics of suicide bombings, I focus on Palestine, Sri Lanka, and Chechnya, three places where female suicide bombings have occurred, and where relatively abundant information about the perpetrators exists.16 I will analyze several cases of female suicide bombers that illustrate the self-redemption thesis. Simple logic dictated the choice of these cases. Although I tried to unearth all the existing cases of female suicide attacks, which have taken place predominantly in Chechnya, Palestine, and Sri Lanka,17 not all cases have been documented. Where personal and anecdotal information about the perpetrators is lacking, cases are unusable for the purposes of explanatory research. 14 15 16

17

Falk, How We Treat Outsiders; Goffman, Stigma. Falk, How We Treat Outsiders. Some information about female attacks in Iraq will also figure in the treatment of the issue. However, the relatively scarce information about the identity of women perpetrators vis à vis other areas makes the deeper analysis difficult. The same applies to Turkish cases, mainly perpetrated by the PKK. I had no access to information of women’s personal histories in the PKK. For this reason, Turkey is excluded from this study. Iraq presents the same difficulties, as mentioned.

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(Iraqi cases, unfortunately, fall into this category, although I mention them later in the chapter). My selection of cases is based on detailed newspaper research, extant interviews with friends and family of the deceased bombers, secondary sources on female suicide terrorism, and reports by security forces. These document the state and situation of the attacker at the time of her death (i.e., pregnancy, marital status, recent whereabouts, etc.). In describing each case, I have synthesized information from these various sources while highlighting, as much as possible, the attackers’ personal situations.18 As mentioned, the selection of the cases is based on a straightforward criterion, namely, availability. I have purported to include in my sample all the cases I have managed to access. In light of this criterion, no selection bias may be attributed to my design because all the cases seem to substantiate, to lesser or greater degrees, the self-redemption thesis. This coincidence, in the absence of a selection bias, should be taken to confirm the (partial) validity of my proposed explanation (if anything). That said, this chapter does not claim that my hypothesis is conclusive, since my study presents a number of limitations that make broad generalizations problematic. For a start, lack of access to all the perpetrators’ stories means the study relies on a relatively small sample of female terrorist cases. Second, knowledge of their personal situations is necessarily limited. Third, I cannot prove that my proposed explanation is true to the exclusion of all other explanations. This work is exploratory and preliminary; its intention is to provide a theoretical framework to inspire further research on why people become terrorists.19 A cautionary note is in order at this point. Men may also be victims of the socio-cultural environment. Expectations regarding their role as breadwinners and successful professionals, among other things, limit male freedom and personal development in many ways. These limitations are particularly stringent in societies where gender hierarchies are as defined as those we are examining. However, I focus on the effect of socio-cultural norms and expectations on 18

19

Secondary sources containing (limited but helpful) information about the personal histories of some of the female bombers are Victor, Army of Roses; Bloom, Dying to Kill; Skaine, Female Suicide Bombers; Schweitzer, “Palestinian Female Suicide Bombers”; and Zedalis, Female Suicide Bombers. O’Rourke, “Behind the Woman Behind the Bomb” fervently argues that there is “precious little evidence of uniquely feminine motivations driving women’s attacks.” On the basis of this lack of tangible proof, she is inclined to reject the hypothesis that gender plays a role in some cases of terrorist behavior. But her approach is simplistically mistaken, I claim. In matters of psychology, it is extremely difficult to conclusively know that a certain mental state was present and that it causally determined a course of action. However, one can suspect that, based on certain features that perpetrators of violence share, a specific type of motivation existed. This does not mean that the explanation proposed is indubitably the correct one. As I mentioned in this chapter various times, this study is preliminary and only suggestive. Future research will reveal whether such explanations are totally convincing or not. Furthermore, and most importantly, the conclusive ness of other explanations of suicide terrorism, which O’Rourke points to, is not total. This inconclusiveness leaves room for other explanatory variables.

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women because women are more vulnerable than men, given the salience of the bias against them. Women are less able to withstand the high cost of failing to uphold social and cultural norms than men given how harshly these societies (formally and informally) punish women who break gender rules. It is plausible that the high social status conferred by martyrdom tempts women to ameliorate, or wipe out, their lost reputations by engaging in suicide bombings. Although men may feel diminished when they cannot fulfill particular social expectations, women are actually punished by society, or by particular individuals, when they transgress salient gender norms. It is possible to hypothesize that males may choose suicide terrorism to enhance their sense of self-importance, or to find existential meaning if they are frustrated in important areas of their lives. I am not persuaded, however, that male terrorist activity is rooted in a desire for instantaneous redemption for a specific act or characteristic that has lost them their reputation. Norms and expectations whose contradiction results in this type of shame apply typically to women, not to men, in the geographic areas under scrutiny.

gender norms: the cultural environment It should be noted that my hypothesis relying on the preponderant role of gender beliefs and gender social norms implies that religion is not a major force behind the emergence of a motivation to become a suicide bomber. A distinction should be drawn between religion (Islam in the case of Palestine and Chechnya, Hinduism in the case of the Tamils) and cultural traits that are independent of any religious faith.20 Often these cultural traits precede the establishment of a given religion in a certain geographic area; and they generally translate into a specific system of laws, or at least, into well-entrenched secular norms of conduct. An overview of some aspects of Arab, Chechnyan, and Tamil cultures reveals how gender norms play out in Palestine with striking similarities in Chechnya and Tamil Sri Lanka.21 This is not to suggest that the similarities regarding the role of gender in social relations indicates uniformity in every aspect of social and cultural life in the three regions under study. However, the flagged commonalities suggest that shared general conceptions of womanhood and feminine roles may plausibly (although not certainly) reveal why some women decide to act as suicide terrorists. 20

21

This distinction is most important in the context of a discussion around suicide terrorism and Islam. According to Islamic precepts, whereas being killed by the enemy in jihad (holy war) guarantees paradise, suicide is strictly forbidden. Shahid/a the name usually given to suicide bombers is the warrior that was killed in battle by the enemy, not the one that killed himself/ herself. Dodd, “Family Honor and the Forces of Change in Arab Society”; Bates and Rassa, Peoples and Cultures of the Middle East; Haj, “Palestinian Women and Patriarchal Relations”; Al Khayyat, Honour and Shame; Goodwin, Price of Honour; Ruggi, “Commodifying Honor in Female Sexuality”; Tishkov, Chechnya.

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family honor and sexual purity In Arab communities, some males consider the concept of honor so important that it may dominate their lives. In particular, the subject of the “Ird” – the reputation of the sexual honor of women – can be an inflaming cause for a man’s anger. “[I]n the descriptions that exist, this honor is characterized as preoccupation with sexual purity and chastity, or as a cause of suspicion and jealously between men and women.”22 The relationship between the sexes is governed by a rigid code of sex mores and ethical ideals, with special emphasis on female purity and chastity, both pre- and post-marital. A woman’s sexual behavior is coextensive with her honor, and a man’s honor is primarily defined by the sexual conduct of “his” womenfolk. As a result, the man assumes responsibility for ensuring that a woman’s honor is not violated. He must guard that honor, because its “stain” means that the stigma of immoral behavior falls on him. If the woman is suspected or accused of any sexual contact with a man outside the marriage bond, her reputation is irredeemably ruined. Her male kin may kill her, discard her, or ostracize her.23 She becomes an object of contempt and is damned for good in her social relations with the rest of the people. As Kandiyoti24 and Haj25 point out, in Middle Eastern societies in general, sexual purity and linear honor are seen as inseparable. The preservation of women’s purity and good reputation is an important cornerstone that shapes and constructs the social profile of many families. The concept of honor in Middle Eastern and some Islamic societies is somewhat different from the Mediterranean understanding of masculine honor, in that it is not gained through acts of courage that demonstrate the worthiness of the person who performs them. In Arabic (and/or) Islamic societies, honor is an attribute men are born with and can lose at any time as a result, for instance, of the misbehavior of women in their family. The controlling attitude to which women must submit in relation to their male kin serves the purpose of protecting this strong sense of intrinsic moral honor, which can be polluted by the actions of others, as one’s shoe is polluted by stepping in manure. Ird, though, appears to be a secular rather than a religious value. The term does not appear in the Qur’an. Both the term and the very high value attached to it existed among the pre-Islamic Arabs. This suggests that the Ird can also exist in communities that place little or no emphasis on orthodox Islam: nomadic pastoralists, the Druze, the Sufist – a form of Islam, the Christians, and the Jews. The basics and principles of Ird are also present in Sri Lanka and Chechnya. In Chechnya, “one of the key concerns of people is to keep their women pure, chaste and to shelter them. Young girls and unmarried women are not allowed to

22 23 24 25

Dodd, “Family Honor and the Forces of Change in Arab Society,” 40. Shalhoub Kevorkian, “Femicide and the Palestinian Criminal Justice System,” 3. Kandiyoti, “Bargaining with Patriarchy.” Haj, “Palestinian Women and Patriarchal Relations.”

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leave the house without company. Girls have to be controlled.”26 The Chechnyan concept of honor differs from the Palestinian and other Arab concepts, in that the Chechens are not fatalists. “This is the idea that certain violations of society’s moral code of conduct do not allow for a return to the status quo ante, even if repentance is displayed.”27 This difference may be related – causally or correlationally – to the more flexible and less orthodox practice of Islam that characterizes that part of the Caucasus. However, and despite the absence of fatalism as a general cultural trait in Chechnya, there is reason to believe that important conceptions of the role of women in the family affect the reputation of females to a point where women may see death as preferable to life. For example, “the view that rape ruins the honor not only of the victim but also of her extended family is common among Chechens.”28 This is why women must at all costs avoid circumstances where they could be raped or subjected to sexual offenses. In Chechnya, rape is considered a worse crime than murder because of its consequences for the reputation and the subsequent social incapacitation of women.29 Tishkov30 claims that rape was a very rare crime in Chechnya before the Russian army began its incursion into Chechen territory. “The probability of retaliation by male relatives (especially brothers) is a major restraining factor [for rape].”31 As in Palestine, the concern for familial honor – embodied, in great part, in the female figure – is a fact of social life in Chechnya. In Sri Lanka, the culture of Sakti (female power) is based upon principles similar to the Palestinian Ird and to the precepts underlying the Chechen codes of conduct – the Adat. Sri Lankan Tamils have been described as displaying an “assiduous concern with female chastity that evokes old cultural patterns.”32 The notions of chastity and purity (referred to as Karpu) are central to the Tamil concept of Sakti, a term that refers to the power to bring good fortune that is exclusively the property of females.33 Although this idea of women being powerful in a mystical sense does not figure among Ird precepts or Chechnyan cultural norms, Sakti does hold that women should not be the object of temptation for men, that they should be mothers, that their male relatives should control them, and that they must be sexually chaste in their acts and thoughts.34 As In 26 27 28 29

30 31 32

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Brauer, “Chechens and the Survival of Their Cultural Identity in Exile,” 394. Jaimoukha, The Chechens, 90. Human Rights Watch Report for 2000, footnote 22. Liborakina, in “Women and the War in Chechnya,” asserts that traditions in Chechnya prompt a raped woman to commit suicide or be murdered by her relatives Tishkov, Chechnya. Ibid., 153. Pfaffenger, “The Cultural Dimension of Tamil Separatism in Sri Lanka,” 1178. The argument is that those old patterns identify a region’s excellence with its landholding caste. Egnor, “On the Meaning of Sakti to Women in Tamil Nadu”; Pfaffenger, “The Cultural Dimension of Tamil Separatism in Sri Lanka,” 1149. Shalk, “Women Fighters of the Liberation Tigers in Tamil Ilam” argues that Karpu “does not actually mean chastity. It means learning a behavior of restraint that is especially important for

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Chechnya and Palestine, this conceptualization of the female figure implies that the maintenance of a girl’s honor is thought to be essential to the status of her family. But this concept of honor, unlike in Palestine or Chechnya, is saturated with a mystical-religious meaning. A woman is seen to possess a supernatural power; so long as she remains chaste, a virgin before marriage and faithful wife later she, will bring to her family an ambient of fertility, good fortune, and joy.35 In order to direct her powers, however, her male kin should control the Tamil woman. So, “it might be surmised that the very function of the word Sakti, implying that women have power, is to mask the reality which is that they have none.”36 Interestingly, many experts on the Tamil question agree that traditional female submissiveness is taken advantage of by the leadership of the Tamil Liberation Tigers: the LTTE is referred to as “one of the few terrorist or guerrilla groups to fully exploit every element (or stereotype) of womanhood from dutiful daughter to mother to rape victim to ferocious fighter.”37 To this effect, the group issues rules of behavior and mimics traditional familial relationships to maintain the group’s chaste image and discipline within the force.38

motherhood, marriage, and the duties of protection In the three societies under study, an important source of a woman’s value rests in her childbearing capacity since it is her responsibility to increase and continue the family lineage.39 Fertility and motherhood are two fundamental aspects of womanhood that, together with sexual purity as an emblem of honor, constitute a constraining set of expectations for females. The Chechen family, for example, is an apparently patriarchal arrangement where senior men hold authority over the entire family and young women are at the very bottom of the family hierarchy.40 An illustrative patriarchal norm prevalent in Chechnya is bride kidnapping and the practice of forcing young girls into marriage.41 Prevalent cultural norms also dictate that, once married, the woman moves to the husband’s family home and remains under his absolute control.

35 36 37 38 39 40 41

virgins, married women and widows in their relations with men, but also more generally in all public behavior. The word has been equated with chastity, which narrows down its semantic field. See also Shulman, Tamil Temple Myths, for a complete description of the Tamil religious mythology associated with female chastity (pre and post marital). Engor, “On the Meaning of Sakti to Women in Tamil Nadu.” Ibid., 1. Stack O’Connor, “Lions, Tigers, and Freedom Birds.,” 44. Ibid. Jaimoukha, The Chechens. Ibid., 39. Ibid.; Tishkov, Chechnya, 153. Tishkov presents interviews with Chechen women in exile who attest to the practice from personal experience.

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In Chechnya, Tamil Sri Lanka, and Palestine, women are seen as the bearers of culture within their community and kinship groups; that is, women bear the primary responsibility for transmitting community norms and standards.42 Therefore, specific expectations regarding women’s obligations to uphold honor, purity, and motherhood serve as the markers of the cultural and ethnic community and as a repository for a distinct cultural identity. With such a burden on women’s shoulders, deviations from the roles mandated by tradition must surely have negative, if not irreversible, consequences for women. A firmly entrenched gender belief common to all three societies under review is the idea that women have (or should have) protective powers over their family and especially over their husbands. This idea is especially strong in the Tamil and Chechnyan cultures. In Chechnya, the tenets of Adat, a code of conduct written into law, places women in this significant position of responsibility. There, women’s protective duty translates into the obligation to avenge the lives of lost loved ones. Although under normal circumstances Adat forbids women from participating in any kind of fighting, it also decrees that if women are the last ones left in the family, they are responsible for avenging the deaths of their relatives by killing the murderers.43 Tamil culture also assigns women the role of protector. According to the precepts of Karpu, “the power residing in the woman is considered vital to the safety of the men surrounding her [and this] helps explain the attempt to preserve this power in its strongest – most pristine – state that is, the woman’s virginity.”44 In Palestinian society, the mother-wife has traditionally played the role of a strong, protective figure.45 She is considered a vehicle of moral teachings to her offspring and is responsible for providing comfort and psychological support to her husband and especially to her sons.46 The family’s emotional well-being hinges to a large extent on her carrying out her duties as a good mother and wife.47 This expectation means that her personal self-worth will largely depend on her ability to fulfill those roles. According to Tamil culture, the status of wife and mother indicates that a woman has attained the highest degree of auspiciousness available to women.48 Childbearing, while a necessary element of auspiciousness, is not sufficient. A woman must also have a husband. A husband and children are the sine qua non 42 43 44 45

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Tishkov, Chechnya; Abdulrahim, 1993. Tishkov, Chechnya. Shulman, 1990, 140. In Palestinian literature, the mother has always been the symbol of the land and played a protective and life giving role (Antonious, “Fighting on Two Fronts,” 30). Klein, “Palestinian Militancy, Martyrdom and Nationalist Communities in the West Bank during the Intifada.” Despite these well entrenched cultural norms, new generations of women in Palestine have experienced advances regarding inclusion in the labor force, educational institutions, and public struggle for national liberation. Reynolds, “The Auspicious Married Woman,” 38.

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condition of full womanhood. Another fact of social life, this time in Chechnya, is the devaluation brought about by widowhood.49 Likewise, in Palestine, where marriage also confers high social status on women, divorced and widowed females are likely to suffer social opprobrium.50 Infertility is the second worst evil that can befall a woman in these societies. Barren women in Sri Lanka, Palestine, and Chechnya may bring shame to their husbands, family, and of course themselves for failing to fulfill one of the most essential requirements of womanhood. “There is a sense in which being a woman is different from being a person and hence regardless of her achievements a woman is not fulfilled, is not a proper woman, until she bears a child. A woman’s identity is therefore very closely bound up with her caring, nurturing role as a mother.”51 The idealization of motherhood in these societies places women on a pedestal in terms of social status (for enabling her husband to expand his family) on the one hand, while oppressing them into conforming to traditional ideals on the other.

the cases In what follows, I discuss actual cases of female suicide bombers, who – based on their personal experiences and the background cultures just described – might have acted out of the motivation to find self-redemption via the cognitive dissonance mechanism of transmutation. Wafra Idris: Palestine, January 27, 2002: A twenty-six-year-old paramedic, Idris was the first suicide bomber in Palestine. She was not religious and did not leave a videotaped confession. However, prior to the attack, she did express a desire to fight for Palestine and against Israeli abuse by becoming a martyr. Her experience as a paramedic exposed her to much human suffering.52 The military arm of Arafat’s Fatah movement (al-Aqsa Martyrs Brigade) claimed responsibility for the attack, and Israeli television announced that she was a member of the organization “Fatah Mothers.” Idris was deeply troubled at the time of the attack. She had been unable to have a family and had delivered a stillborn female child. Her husband divorced her because she could not have children and married another woman in the same neighborhood with whom he had one child. Idris became severely depressed after the divorce.53 This case illustrates the violation of the gender belief that motherhood defines womanhood. 49 50 51 52

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Jaimoukha, The Chechens. Wade Ata, The West Bank Palestinian Family. Victor, Army of Roses, 26. Wafa’s mother maintains that her daughter was motivated more by nationalist fervor than by religion. “She was a Muslim, which made her fearless, but the injustices of the Jews made her act” (Victor, Army of Roses, 40). In Wafa’s mother’s words: “My daughter’s husband divorced her because she couldn’t have children. Wafa knew she could never marry again because a divorced woman is tainted. She was young, intelligent and beautiful and had nothing to live for” (Victor, Army of Roses, 41).

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Martyrdom is a form of self-redemption that creates a positive post-mortem reputation and ends shame. Darine Abu Aisha: Palestine, February 27, 2002. Darine was a twenty-yearold student of English literature at Al-Najah University in Nablus who made good grades and was religious. She left a videotaped confession calling for jihad and the elimination of Israel. Hamas claimed responsibility for the attack. According to interviewed sources, Darine had rejected several offers of marriage because she wanted to continue with her studies.54 Her best friend, Nano Abdul, reportedly said: “Darine had no doubt her major in English literature was not only something that inspired her but was what she intended to teach on a university level after she graduated. She was a leader and a feminist . . . this shocked us all.”55 Evidently, there was enormous pressure on Darine to marry. Her dearest friend notes that “her family was pleased with her academic achievements but they still felt that she was at the university only until she married and had children. They were extremely upset when she announced she had no intention of ever marrying because she had no intention of becoming a slave.”56 According to Nano, “while Darine was brilliant, she was also frustrated . . . she knew absolutely that regardless of her achievements at university, her fate as a Palestinian woman was sealed – an arranged marriage, six or seven children, a husband who probably wouldn’t have the same curiosity about life as she did. One day she told me she would rather die before letting her parents put more pressure on her . . . she was giving up. She had gone as far as she could in this environment.”57 Nadine was also the victim of sexual harassment at a checkpoint in Nablus. While in the company of some friends, Israeli soldiers forced her to kiss one of them on the mouth in order to permit the passing of an ambulance carrying a dying Palestinian baby (and his mother) in urgent need of medical care. She agreed to the kiss to save the baby, but her reputation was destroyed after the event. Her parents arranged her marriage to one of her good friends who volunteered to marry her to avoid a disgrace to the family. Nadine killed herself before the wedding in the name of Allah and Palestine. Zina Daraghmer: Palestine, August 9, 2002. Zina was twenty years old at the time of the attack. She was also a single mother, whose father took her son away from her for that reason. She was sent away to live with her cousins to hide her shame after being secluded in her hometown for several weeks. At this point, she joined Hamas, and shortly afterward, she killed herself and others when she detonated herself at Sbarro’s Pizzeria, a popular meeting place in

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Samira, one of her cousins, is reported to have said: “She refused them all [the men]. She was only interested in studying . . . sometimes people teased her and called her names because she refused to marry and have children. Her parents suffered because of this” (Victor, Army of Roses, 100). Victor, Army of Roses, 102. Ibid., 103. Ibid., 104.

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Jerusalem. The gender belief violated was that women should be chaste and not have pre-marital sex. Ayat-al-Akras: Palestine, March 29, 2002. Ayat was nineteen years old at the time of the attack. Her father worked for an Israeli construction company. He had been harassed by some neighbors and urged to quit his job on the grounds that he was collaborating with the enemy and was a traitor. A friend of Ayat who speaks on the condition of anonymity claims that before the attack, “[S]he told me there was only one chance to save her family and herself from disgrace.”58 Fatah claimed responsibility for the attack. This case attests to the crushing responsibility, placed on the woman, to save a beloved male relative from humiliation (protective duty). The belief underlying this girl’s action is that women are fundamental carriers of family honor, and their inaction may also be a source of shame. Reem al-Riyashi. Palestine. January 14, 2004. Twenty-two years old, from Gaza, she detonated herself in the industrial zone in the vicinity of Erez crossing in the Gaza Strip. This case is similar to Zina’s in that it involves the shame of “sexual impurity.” Israeli sources claim that this woman was encouraged to commit the suicide bombing by her husband. This was imposed as a punishment for cheating on him. Allegedly, al-Riyashi’s husband was a Hamas activist, and her lover was a Hamas operative who had carried out the affair with the express purpose of recruiting her. According to Israeli sources, the woman’s husband himself drove her to the border crossing. She was the mother of two children. This case reflects an instance of self-redemption after sexual impurity and the shame caused by disclosure of the act. Iman Asha: Palestine, August 3, 2002. Twenty-years old, from Nablus, and married with children. She was caught by Israeli security forces before she could complete her mission. She confessed in a Jerusalem prison that she was determined to kill herself and others in order to “clear the family name and improve her family status.” Her husband had been accused by Palestinian friends of collaborating with Israel because he worked for an Israeli construction company. This points to another case of crushing responsibility for saving a beloved from falling into disgrace and protecting his honor. Hanadi Haradat: Palestine, October 4, 2003. Twenty-nine years old, from Haifa, single, and a lawyer from a village in the Jenin area. Reports suggest she might have been pregnant, the product of a (hidden) relationship with a male friend. This case may point to an instance of sexual honor being damaged by premarital sexual activity. Additionally, it has been suggested that Haradat may have been facing questions about why she was single.59 However, Tzoreff writes that the loss of two family members in the Israeli-Palestinian conflict may have fed a thirst for revenge. He asserts that “becoming a shahida rescued Hanadi

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Victor, Army of Roses, 208. Fighel, “Palestinian Islamic Jihad and Female Suicide Bombers,” 52.

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from the lifelong spinsterhood dictated by her advanced age . . . . She was in an untenable position in a society that sanctifies marriage.”60 Zarema Muzhikhoyeva: Chechnya, 2003. Twenty-two years old. She was caught by a Russian police officer before she could blow herself up. Her husband is reported to have died, but in a car accident, not in the war. According to sources close to the woman, she had an infant daughter who was taken away by her parents when the father died because as a single mother she was not seen as fit to raise a child. This case highlights the shame and stigma associated with widowhood and the resulting loss of female identity. Motherhood is ruled out, and the woman is left without a useful and fulfilling social function. Namanta Nagayageva, Maryam Taburova, and Satsita Dzherbikhanova: Chechnya, August 2004. Thirty-two years old, twenty-seven years old, and thirty-seven years old, respectively. All were divorced or unmarried and none had children. They rented a flat together and lived in Grosny, working in a fruit market. Nagayaheva’s father was killed by Russian troops. The other two had no relatives killed. They hijacked a plane in August 2004. This case seems to point to the contravention of the following gender belief: women must marry and bear children before they are too old. It also points to the role of vengeance in the emergence of the motivation, however. Dahnu: Tamil Sri Lanka, May 21, 1991. Her suicide attack killed Rajiv Gandhi, former prime minister of India. She had been gang raped two years before, and Indian peacekeeping forces had killed her brothers. She joined the suicide bomber unit of the Tamil Liberation Tigers after those events. This case points to contravention of the gender belief that rape is antithetical to female purity.61 It can be classified as “mixed” in that vengeance also played an important role. Some cases do not fall neatly under the self-redemption hypothesis. In these cases, vengeance and national liberation, respectively, appear predominant. In fact, documentary evidence suggests that female suicide bombers are often motivated by vengeance. Many women who claim vengeance, though, also present personal histories that validate the self-redemption hypothesis (sexual abuse, rape, widowhood). I have indicated when this overlap occurs, implying mixed motives, although the contribution of each defies precise measurement.

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Tzoreff, “The Palestinian Shahida,” 20. There is a strong probability that many of the women who lost relatives in the war were also raped. In Chechnya, Sri Lanka, and Palestine, rape carries a stigma that destroys all prospects of marriage and social respect. Rape, in general, triggers profound shame in the victim and severely damages her self esteem, no matter what culture she belongs to. It is not far fetched, therefore, to believe that when rape occurs in an environment where ostracism is a likely response, this feeling of shame becomes unbearable and transmutation (or even direct volunteering to kill oneself for no other reason) occurs much more easily. The self redemption hypothesis includes those cases in which a woman experiences shame because she has lost her reputation as a result of rape or harassment.

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Personal histories that do not immediately suggest self-redemption but which contain family loss due to nationalist conflict or war imply the primacy of revenge rather than nationalism or religion as a motivation. This scenario appears highly probable in Chechnya, where the so called black widows are commonly seen as alienated women seeking vengeance for the death of husbands and other family members at the hands of the Russian army. However, there is no way of knowing with exactitude the strength of any one of these possible sources of motivation.62 The anecdotal evidence in the two following instances weakens the case for self-redemption as a sufficiently important incentive for action. As such, these women’s stories delimit the explanatory reach of my hypothesis. Andalib Suleiman: Palestine, April 25, 2002. Twenty-one years old, single, and no known personal trauma. Born in Bethlehem, she is reported to have told a friend shortly before the attack that “she wanted to avenge all the killings of women and children by Israelis, to prove to the Arab world that women were braver and stronger than their best fighters, and to show all the Palestinians that they were fierce and resolute in resisting the occupation.”63 Zulikhan Yelikhadzhiyeva: Chechnya, June 2003. Nineteen years old and no evidence of personal trauma or abuse, no male relatives killed. She blew herself up in a music festival at Moscow. She was single and a medical school student. The New York Times reported that “she lived much of her short life surrounded by the two wars in Chechnya but she suffered comparatively little.”64 According to the article, her mother told the reporter that “she had not yet married because she planned to continue studying medicine, she was different.” However, this story lends itself to the possibility that the stigma of being single may have been part of the motivation.

analysis and discussion in light of the existing literature Martha Crenshaw asks the following question: Does the fact that women become terrorists require a specific psychological explanation?65 Her query is only suggestive since she does not answer it but merely limits herself to pointing out an interesting avenue of exploration. The cases described here provide partial, but innovative, answers to the question that Crenshaw considered worth including in the terrorism research agenda.

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In support of my thesis, Schweitzer (2007) offers an interesting summary of a series of interviews conducted in Israel to failed female suicide bombers now in prison. She shows how almost all their motives, after sincere reflection, appear to be personal and later transmuted into nationalistic and/ or religious reasons for action. Among the personal reasons that women allude to as motivations are vengeance for the loss of loved ones and/or intention to avoid humiliation or stigma. Victor, Army of Roses, 253. Myers, “Female Suicide Bombers Unnerve Russians.” Crenshaw, “Questions to Be Answered,” 250.

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My “mental mechanism approach” has been echoed in recent studies of suicide terrorism. Bandura’s path-breaking work on motivations for terrorist activity, for example, focuses on psychological mechanisms of moral disengagement.66 Bandura holds that moral disengagement makes culpable behavior honorable through cognitive reconstruction and personally acceptable when in the service of moral purposes. Kohn-Maikovich67 has also associated cognitive reconstruction with terrorist practices. His thesis is that terrorists transform their personal desire for existential meaning into collective vengeance-seeking motives. In this way, we see how the psychology of (suicide) terrorism also includes processes that allow the perpetrator to boost his or her sense of self-worth in the context of a devalued existence by exacerbating his or her sense of being able to make a worthwhile impact on the world, and be consequently positively appreciated by others. “Membership in a terrorist group may be the first experience some people have of true belonging; it may be the first time someone felt truly significant, the first time they felt their actions counted.”68 Although this psychological approach to suicide terrorism is innovative and illuminating, its focus has been too narrow. It has abstracted mental processes and emotions from socio-cultural norms and their corresponding influence on behavior. My argument in this chapter is that the socio-cultural context in which individuals are situated can trigger the various mental processes and emotions that ultimately lead to participation in terrorist activities. In this sense, what culture sociologists refer to as “the theory of environmental triggering”69 may have some purchase in explaining women’s reactions to a breach of their reputation. As the cases previously described may be thought to suggest, the motives of female suicide bombers can be correlated with the specific gender norms and expectations under which they live (and die), and which form part of the cultural environments in which they are immersed. This claim, in turn, resonates with Emile Durkheim’s observation that a suicidal inclination is partially explained by the structure of the society in which the individual lives. Although Durkheim70 was not referring to gender norms when theorizing about the causes of suicide, he did acknowledge the importance of external structural factors – culture – (in helping) to explain (and trigger) the psychological motivations for suicide. Several studies have mentioned cultural factors as an important source of influence for suicidal behavior.71 With regard to suicide terrorism, as in other contexts of sacrificial selfdestruction, culture may affect behavior in two main ways: by setting norms

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Bandura, “Mechanisms of Moral Disengagement.” Kohn Maikovich, “A New Understanding of Terrorism Using Cognitive Dissonance Principles.” Post, “Terrorist Psycho Logic,” 31. DiMaggio, “Culture and Cognition,” 279. Durkheim, Suicide. Merari, “The Readiness to Kill and Die,” 197.

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regarding the circumstances under which a person may commit suicide and sometimes delineating the manner of doing it (e.g., actively or passively), and by influencing people’s concepts (and expectations) concerning the question of what happens after death. A firm belief in an afterlife, for example, may assuage the natural fear associated with the “what comes after death” question. Belief in the afterlife, however, is strongly associated with religiosity. Thus, religion (as different from culture) may actually play a role in incentivizing suicide under certain circumstances.72 The cases in the previous section also suggest that, as a general rule, the would-be female attackers’ experience of shame results from two factors: the shattering of the female’s reputation as sexually pure and untouched on the one hand, and the unfulfillment of the traditional female role of caregiver, mother, and husband protector on the other. Events that result in the shattering of a woman’s reputation are also an affront to that woman’s family honor (especially of her male kin). In turn, shame can develop via two different mechanisms, as the study cases in this chapter suggest. First, the woman may conduct herself “indecently” by having an extra-marital affair, having premarital sex, being seen with a male in a suspicious romantic attitude, or engaging in similar activities denoting promiscuity (Falk’s sense of “achieved stigma”). Second, the woman’s sexual reputation may be ruined by way of external action that is independent of her behavior and intentions (Falk’s sense of “existential stigma”). Examples of this are sexual harassment, sexual assault, rape, and similar events that rob the female of her virginal status against her will. Cases of existential stigma are interesting because they highlight the stringency of gender norms of sexual purity for women. They show that even when the woman never intended to transgress a social norm, unwanted bodily intrusion can cause her to fall in disgrace in the eyes of her family and society. Events that bring shame via the unfulfillment of traditional female roles, in turn, fall within a different category than sexual purity cases because they do not affect sexual purity strictly speaking. Instead, they compromise a female’s image by signaling her as incapable of carrying out her “natural” duties as a woman, which include childrearing, homemaking via marriage, and spiritual support and protection for her husband. In particular, examples of this are cases of infertility, divorce, being single after a certain age, gratuitous repudiation by one’s husband, inability to avenge one’s husband’s death or mistreatment, and any type of behavior that could be interpreted as neglectful of family and housekeeping tasks. I am aware that the cases provided in this chapter do not conclusively show that self-redemption is the sole motivation for female suicidal terror. The political climate and a sense of national sacrifice are clearly significant factors. This 72

The belief in paradise after death is a plausible “enticing factor” for males who volunteer as suicide bombers since the afterlife includes sexual interaction with virgins for them, according to widely shared beliefs, not necessarily contained in the Q’oran explicity.

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chapter suggests that women are likely – given the gender norms that affect them qua women – to fall prey to personal reasons for becoming a human bomb. But although my analysis has focused almost exclusively on the ways in which domestic cultural factors influence women’s motivations for engaging in suicide missions, other factors can of course be present. One such factor may well be the sense of oppression and abuse felt by subjects of the Israeli, Russian, and Sri Lankan governments. It is impossible to know the extent of such influence and whether it actually affects a person’s willingness to die, but it seems both analytically and ethically incorrect to ignore it. The argument, however, could be made that individuals do not commit suicide because of a sense of oppression and injustice. After all, it is well established that people adapt to (unfavorable) conditions and can even attain high degrees of well-being under such circumstances.73 However, we are not here studying cases in which people are randomly disadvantaged by birth. In such cases, the sources of responsibility for their disadvantage are too diffuse to elicit concrete reactions. Indeed, one could think that it is easier to adapt to unfavorable circumstances when it is difficult for us to identify the actors that could be held responsible for our misfortune. But in the cases I am focusing on, the Israeli, Russian, and Sri Lankan tanks and military personnel are, in the eyes of prospective terrorists, solely responsible for their misery and for that of the society as a whole. It is not, therefore, far-fetched to think that the clear identifiability of the oppressor retards adaptation or even renders it impossible. This hypothesis is supported by the fact that many terrorists describe their involvement with terrorist/nationalist organizations solely in terms of revenge desires. Of course, women are not immune to bitter feelings of vengeance. In fact, all the videotaped confessions of women examined for this article publicly identify revenge as the sole motive for their decision to die as martyrs. Revenge and anger are powerful reasons incentivizing suicide in these areas. Juergensmeyer74 describes how if an individual or society perceives the world as peaceful, then violent acts are easily judged as unacceptable. However, if the world is perceived as being in a state of war, violent acts appear more legitimate. It is highly probable that, given the state of turmoil and political instability that the three areas under study are characterized by, suicide missions are increasingly perceived as a valid method of expression and action for a sizable number of individuals, who remain most vulnerable to the abuse and attacks of powerful and highly militarized enemies. Nevertheless, this article aims to suggest that the decision to become a female suicide bomber may involve factors other than nationalism, revenge, and/or religious devotion. Most regions with similar gender beliefs to the ones on which this chapter focuses are not split along political, ethnic, and religious lines to the extent that 73

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For an application of this argument to the cases of poverty and deprivation, see Elster, “Motivations and Beliefs in Suicide Missions.” Juergensmeyer, Terror in the Mind of God.

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open violence reigns supreme. And even in those cases where such divisions are the most destabilizing, the local political culture may militate against certain terrorist practices such as suicide missions.75 By contrast, in societies where male and female suicide missions are common, a shared political culture provides fertile ground for radical violence and the willingness to die for nationalist and/ or religious causes. All the societies in which female suicide bombings take place feature a culture of self-sacrifice that reveres death in political struggle. Such a culture provides the conditions that make suicide terrorism a possibility. Although Islam’s emphasis on the duty to eliminate infidels may well help to bring about radical tactics such as suicide missions, suicide killings do not necessarily follow from religious identification – as the kamikaze phenomenon clearly shows.76 Cultural traits such as the cult of martyrdom in Palestine and the excessive emphasis on sacrifice characteristic of the Tamil culture, however, are great facilitators of suicide missions. Culture in these societies includes a definite set of practices that seem to be independent of religion and which form part of the social environment that pushes some young women to become suicide bombers. However, religion-informed reasons may play a role. As already mentioned, belief in a pleasure-filled afterlife has proven to be a great facilitator of suicide attacks, although not the latter’s main cause. Yet, one question remains: In the absence of a similar promise to women, what makes female bombers eager to volunteer? One could hypothesize that women in general are not interested in pleasure-based rewards when participating in suicide terrorism. Mere closeness to God in heaven may act as a facilitator of motivation. Vis-à-vis men, women are generally socialized into depressing their most sensual appetites, and this tendency is more evident the more culturally and religiously conservative a region is. For this reason, women may not need a pleasure-based incentive to face death, at least not to the same extent as men do. Additionally, it is possible that women’s decision to die, in the absence of tangible benefits of the sort men expect to receive after suicide, springs from a more earthly motivation than sexual paradise. Women already deflected in the self-worth may want to appease their suffering, but they may also seek a last chance to revive their sense of agency, that is, a sense of control over their lives, within the limits of the options left to them after their reputations have been damaged. If anything, the “agency thesis” is harder to substantiate than the selfredemption thesis (although the two may logically coexist as explanations in many individual cases).

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Consider forms of Western terrorism practiced by organizations such as ETA or the IRA. In these cases, although political religious divisions are destabilizing, suicide missions are not the norm. Consider also Latin America, where gender beliefs and norms about women are similar to those held in the countries studied here. Latin American countries stricken by terrorism, however, have remained free from suicide attacks. See Kalyvas and Sanchez Cuenca, “Killing Without Dying.” Hill, “Kamikaze 1943 1945.”

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The self-redemption thesis based on cognitive dissonance appears to be less controversial than the agency thesis because gender norms and expectations are somewhat observable in their behavioral consequences. A gamut of social norms could be thought to influence dressing codes, the way in which women and men interact in public spaces, career choices for women, marriage age, the size of families, and many other dimensions of life. However, it is difficult to see if, and how, those same social norms play a role in instilling a sense of personal initiative. How can culture be so constraining and at the same time liberating? The agency explanation resonates with accounts of religion as a “free space.”77 According to these views, religion may offer a space for sociability, connectedness, community work, and participation in religious organizations. In sum, religion may increase an individual’s social capital. Of course, the parallel between the social capital explanation in religion and female suicide bombings is weak in many respects because we already know that many of the social norms involved in women’s motivations to become a human bomb are not entirely coextensive with religion. They predate it or have developed independently. Additionally, suicide is not a very pro-social way of increasing one’s agency and connectedness with others since it permanently terminates social interaction. However, it is not far-fetched to think that some female suicide bombers may use martyrdom as a last sign of their loyalty to the group (whether national or religious) and of their selfless sacrifice for a cause that the group finds important to pursue. In this sense, suicide missions may become associated with a marker of collective identity and, ironically, social capital.

conclusion This chapter did not argue for the priority of any of the causes analyzed regarding female suicide missions. A woman may become a suicide bomber for any number of reasons. Nevertheless, I claimed that the incidence of some factors may be stronger in women than men. Many personal histories may testify to the power of other motives than self-redemption. This fact confirms the nonessentialist idea that women may also share mens’ motivations to participate in violence. It also suggests that women, like men, can be driven to act for “the larger cause” rather than for personal reasons alone. However, I believe that unique gender motives may also drive women to act when their personal experiences interact with the gender norms that apply to them as women. Whether the same can be said about male suicide bombers is an open question. To my knowledge, no such study of male terrorism exists. My impression is that such a research project should include gender norms about defining masculine traits in these societies. That said, I doubt that the self-redemption mechanism outlined here would gain much traction when it comes to explaining male suicide 77

Sherkat and Ellison, “Recent Developments and Current Controversies in the Sociology of Religion,” 374.

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bombings. The personal reputations of men do not hinge on norms of sexual purity as a hallmark of family honor and devotion to domestic life. It is therefore much harder, if not impossible, to shatter those reputations. Finally, although my restricted sample renders my hypothesis tentative, the self-redemption explanation opens a new door for research on the roots of female violence, which is a vast and lively field of study in sociology as well as other disciplines such as political science and social psychology. Greater accessibility to information on particular female suicide bombers might in the future shed more light on the role of cognition and its interaction with culture when explaining the causes of female suicide terrorism. References Abdulrahim, D. 1993. “Defining Gender in a Second Exile: Palestinian Women in West Berlin.” In Migrant Women: Crossing Boundaries and Changing Identities, edited by G. Bujis. Oxford: Berg Publications. Agarwal, B. 1989. Structures of Patriarchy: The State, the Community and the Household. New York: Zed Books Ltd. Akhmedova, K., et al. 2006. “Black Widows: The Chechen Female Suicide Terrorists.” In Female Suicide Bombers: Dying for Equality? edited by Y. Schweitzer. Jaffe Center for Strategic Studies: Tel Aviv University. Alison, M. 2003. “Cogs in the Wheel? Women in the Liberation Tigers of Tamil Eelam.” Civil Wars 6, no. 4: 37 54. Alison, M. 2003. “Women as Agents of Political Violence: Gendering Security.” Security Dialogue 35, no. 4: 447 463. Al Khayyat S. 1993. Honour and Shame: Women in Modern Iraq. London: Saqi Books. Antonius, S. 1979. “Fighting on Two Fronts: Conversations with Palestinian Women.” Journal of Palestine Studies 8, no. 3: 26 45. Aronson, E. 1977. Readings about the Social Animal. New York: Freeman & Company. Atran, S. 2003. “Genesis of Suicide Terrorism.” Science, March 7: 1534 1539. Balabanoff, A. 1973. My Life as a Rebel. Bloomington: Indiana University Press. Bandura, A. 1998. “Mechanisms of Moral Disengagement.” In Origins of Terrorism, edited by W. Rauch. Baltimore: John Hopkins University Press. Banerjee, S. 1966. “The Feminization of Violence in Bombay: Women in the Politics of the Shiv Sena.” Asian Survey 36, no. 12: 1213 1225. Barnes, S., and Kaase, M. 1979. Political Action. London: Sage Publications. Bates, D., and Rassa, A. 1983. Peoples and Cultures of the Middle East. New Jersey: Prentice Hall. Beeston, R. 2004. “Black Widow Suicide Bombers are Extremists’ Worst Weapon.” The New York Times, September 3. Berger, M. 1962. The Arab World Today. New York: Doubleday. Berger, P. 2001. “Reflections on the Sociology of Religion Today.” Sociology of Religion 62, no. 4: 443 454. Beyler, C. 1994. “Messengers of Death.” www.ict.org.il/articles/articledet. Bloom, M. 2004. Dying to Kill: The Global Phenomenon of Suicide Terror. New York: Columbia University Press.

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Boldon, L. 1998. “Towards a New Sexual Abuse Model: Shame and Spiritual Distress in Sexually Abused Women.” Master of Arts thesis, Trinity Western University. Bonet, P. 2004. “Alerta de Viudas Negras en las Calles de Moscú.” Página12, September 4. Brauer, B. 2002. “Chechens and the Survival of Their Cultural Identity in Exile.” Journal of Genocide Research 4, no. 3: 387 400. Brunner, C. 2005. “Looking for Gender in Reporting the Suicide Bombings of the Israeli Palestinian Conflict.” Global Society 19, no. 1: 29 48. Campbell, J. 1964. Honour: Family and Patronage. London: Oxford University Press. Cave, D. 2007. “Blast Kills 40 as Cleric Faults Baghdad Plan.” The New York Times, February 25. Christopher, L. 2005. “Disguised Woman in Iraq Suicide Bomb Blast.” Daily Post, September 29. Coomaswamy, N., et al. 1996. “Tiger Women and the Question of Women’s Emancipation.” Tamil Times, December 15. Copeland, L. 2002. “Blackmailing Suicide Bombers: The New Factor in Mideast’s Equation.” The Washington Post, April 27. Crenshaw, M. 1998. “Questions to Be Answered, Research to Be Done, Knowledge to Be Applied.” In Origins of Terrorism. Psychologies, Ideologies, Theologies, States of Mind, edited by W. Reich. Washington, DC: Woodrow Wilson Center Press, 247 261. Cronin, A. 2003. “Terrorists and Suicide Attacks.” CRS Report for Congress, August 28, 1 26. Cunninham, K. 2003. “Cross Regional Trends in Female Terrorism.” Studies in Conflict and Terrorism 26, no. 3: 171 195. Cutter, A., “Tamil Tigresses.” www.columbia.edu/cu/sipa/PUBS/SLANT/SPRING98/ ARTICLE5.HTML. Dalrymple, W. 1991. “After the Gandhis: Dignity and Death with the Freedom Birds.” The Independent, May 26. D’Andrade, R. 1995. The Development of Cognitive Anthropology. New York: Cambridge University Press. Dellios, H. 2003. “Women Kill 3 Rangers in Suicide Bombing.” Chicago Tribune, April 5. De Mause, L. 2001. “The Childhood Origins of Terrorism.” Journal of Psychohistory 29, no. 2: 132 137. De Waal, T., and C. Gaal, 1997. Chechnya: A Small Victorious War. London: Pan. DiMaggio, P. 1997. “Culture and Cognition.” Annual Review of Sociology 23: 263 287. Dodd, P. 1973. “Family Honor and the Forces of Change in Arab Society.” International Journal of Middle East Studies 4, no. 1: 40 54. Durkheim. E. 1951. Suicide: A Study in Sociology. Glencoe, IL: Free Press. Dworkin, A. 2002. “The Women Suicide Bombers.” Feminista, 5,1. Egnor, M. 1991. “On the Meaning of Sakti to Women in Tamil Nadu.” In The Powers of Tamil Women, edited by S. Wadley. New Delhi: Manohar. Elster, J. 1984. Sour Grapes. Cambridge: Cambridge University Press. Elster, J. 1989. Nuts and Bolts for the Social Sciences. Cambridge: Cambridge University Press. Elster, J. 1998. “A Plea for Mechanisms.” In Social Mechanisms: An Analytical Approach to Social Theory, edited by P. Hedtrom and R. Swedwerg. Cambridge: Cambridge University Press. Elster, J. 1999. Alchemies of the Mind: Rationality and the Emotions. Cambridge: Cambridge University Press.

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Elster, J. 2005. “Motivations and Beliefs in Suicide Missions.” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford and New York: Oxford University Press. Falk, G. 2001. How We Treat Outsiders. New York: Prometheus Books. Festinger, L. 1957. A Theory of Cognitive Dissonance. Stanford: Stanford University Press. Fighel, Y. 2003. “Palestinian Islamic Jihad and Female Suicide Bombers.” International Policy Institute for Counter Terrorism, October 6. Available at http://www.ict.org.il. Frey K., et al. 2004. Experiments with People: Revelations from Social Psychology. New York: Routledge. Gambetta, D. 2005. “Can We Make Sense of Suicide Missions?” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford and New York: Oxford University Press. Goddard, V. 1987. “Honor and Shame: The Control of Women’s Sexuality in Naples.” In The Cultural Construction of Sexuality, edited by B. Caplan. London: Tavistock Publications. Goffman, E. 1968. Stigma: Notes on the Management of Spoiled Identity. New York: Touchstone Books. Goodenough, P. 1995. “Blood and Honour.” Middle East Digest, February, 34 47. Goodwin, J. 1995. Price of Honour: Muslim Women, Lift the Veil of Silence on the Islamic World. New York: Warner Books. Gordon, H. 2002. “The Suicide Bomber: Is it a Psychiatric Phenomenon?” Psychiatric Bulletin 26: 285 287. Haj, D. 1992. “Palestinian Women and Patriarchal Relations.” Signs 17, no. 4: 761 782. Hamady, S. 1960. Temperament and Character of the Arabs. New York: Twayne Publishers. Harmon, C. 2000. Terrorism Today. London: Frank Cass. Hassan, N. 2001. “An Arsenal of Believers: Talking to the Human Bombs.” The New Yorker, November 19. Available at http://www.newyorker.com/archive/2001/11/19/ 011119fa FACT1?currentPage all. Hill, P. 2005. “Kamikaze 1943 5.” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford and New York: Oxford University Press. Hirschmann, N. 1998. “Western Feminism, Eastern Veiling and the Question of Free Agency.” Constellations 5, no. 3: 345 368. Hopgood, S. 2005. “Tamil Tigers 1987 2002.” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford and New York: Oxford University Press. Human Rights Watch Report. 2000. “Background on the Case of Keda Kungaeva.” http://www.hrw.org/backgrounder/eca/chechbck. Iaccheo, A. 1994. Donne Armate: Resistenza e Terrorismo. Milan: Mursia Editore. Jacques, K., and P. Taylor, 2008. “Male and female suicide bombers: different sexes, different reasons?” Studies in Conflict & Terrorism 31, no. 4: 304 326. Jaimoukha, A. 2005. The Chechens. New York: Routledge Curzon. Jepperson, R., and A. Swidler. 1994. “What Properties of Culture Should We Measure?” Poetics 22: 359 371. Juergensmeyer, M. 2000. Terror in the Mind of God: The Global Rise of Religious Violence. Berkeley: University of California Press. Kalyvas, S., and I. Sanchez Cuenca. 2005. “Killing without Dying: The Absence of Suicide Missions.” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford and New York: Oxford University Press.

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Kampwirth, K. 2002. Women and Guerrilla Movements. University Park: The Pennsylvania State University Press. Kandiyoti, D. 1988. “Bargaining with Patriarchy.” Gender and Society 2.3. Khalil, A. 2004. “Iraqi Woman Calmly Confesses How She Tried to Blow Up Hotel.” Los Angeles Times, November 14. Kihmi, S., and E. Shemuel. 2004. “Who Are the Palestinian Suicide Bombers?” Terrorism and Political Violence 16, no. 4: 815 840. Klein, J. 1997. “Palestinian Militancy, Martyrdom and Nationalist Communities in the West Bank during the Intifada.” In Martyrdom and National Resistance Movements, edited by J. Pettigrew. Amsterdman: Vu University Press. Knight, A. 1979. “Female Terrorists in the Russian Socialist Revolutionary Party. Russian Review 38, no. 2: 139 159. Kohn Maikovich, A. 2006. “A New Understanding of Terrorism Using Cognitive Dissonance Principles.” Journal for The Theory of Social Behavior 35, no. 4: 373 397. Kressel, G. 1981. “Sororicide/Filiacide: Homicide for Family Honour” Current Anthropology 22, no. 2: 206 228. Kulwicki A. 2002. “The Practice of Honor Crimes: A Glimpse of Domestic Violence in the Arab World.” Issues in Mental Health Nursing 23, no. 1: 77 87. Layton, K. 2005. “The Emperor Carries a Gun: Capacity Building in the North Caucasus.” The Online Journal of Peace and Conflict Resolution, issue 6.1. Available at http://ojpcr.org/. Lester, D., et al. 2004. “Suicide Bombers: Are Psychological Profiles Possible?” Studies in Conflict and Terrorism 27, no. 4: 283 295. Liborakina, M. 1996. “Women and the War in Chechnya.” http://www.owl.ru/eng/ womplus/1996/gender.htm. Macdonald, E. 1991. Shoot the Women First. New York: Random House. Manekas, J. 2005. “The Invisible Enemy: Suicide Terrorism in Chechnya and Sri Lanka.” Master of Arts thesis: Tufts University. (Available online.) Markus, H. R., and S. Kitiyama, 1994. “The Cultural Construction of Self and Emotion: Implications for Social Behavior.” In Emotion and Culture: Empirical Studies of Mutual Influence, edited by S. Kitiyama and H. Markus. Washington, DC: American Psychological Association. McCauley, C., and M. Segal. 1987. “Social Psychology of Terrorist Groups.” Annual Review of Social and Personality Psychology 9. McGilvray, D. 1989. “Households in Akksraipattu: Dowry and Domestic Organisation among the Matrilineal Tamils and Moors in Sri Lanka.” In Society from the Inside Out: Anthropological Perspectives on the South Asian Household, edited by L. Gray, et al. London: Sage Publications. Merari, A. 1998. “The Readiness to Kill and Die: Suicidal Terrorism in the Middle East.” In Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind, edited by W. Reich. Washington, DC: Woodrow Wilson Center Press. Mernissi, F. 1982. “Virginity and Patriarchy.” Women’s Studies International Forum 5, no. 2: 183 191. Mite, V. 2003. “Chechnya: What Is Driving Women to Suicide Missions?” CDI Russia Weekly. www.globalsecurity.org/security/library/news/2003/07/sec. Mullaney, M. 1983. Revolutionary Women: Gender and the Socialist Revolutionary Role. New York: Praeger.

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Mullaney, M. 1984. “Women and the Theory of Revolutionary Personality: Comments, Criticisms, and Suggestions for Further Study.” The Social Science Journal 21, no. 2: 49 70. Myers, S. 2003. “Female Suicide Bombers Unnerve Russians.” The New York Times, August 7. Neuberger, L., and T. Valentini. 1996. Women and Terrorism. New York: St. Martin’s Press. Nivat, A. 2005. “The Black Widows: Chechen Women Join the Fight for Independence and Allah.” Studies in Conflict and Terrorism 28, no. 5: 413 419. Oliver, A., and P. Steinberg. 2005. The Road to Martyr’s Square: A Journey into the World of the Suicide Bomber. Oxford: Oxford University Press. O’Rourke, L. 2008. “Behind the Woman Behind the Bomb.” New York Times, August 2. Passadena, L. 2004. “Las Mujeres Son Cada Vez Más Utilizadas en los Atentados Suicidas en Chechenia.” La Nación, September 8. Pearlstein, R. 1991. The Mind of The Political Terrorist. Wilmington, DE: SR Books. Pfaffenger, B. 1981. “The Cultural Dimension of Tamil Separatism in Sri Lanka.” Asian Survey 21, no. 11: 1145 1157. Post, J. 1998. “Terrorist Psycho Logic: Terrorist Behavior as a Product of Psychological Forces.” In Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind, edited by W. Reich. Washington, DC: Woodrow Wilson Center Press. Reuter, C. 2004. My Life as a Weapon: A Modern History of Suicide Bombing. Princeton: Princeton University Press. Reynolds, H. 1991. “The Auspicious Married Woman.” In The Powers of Tamil Women, edited by S. Manohar Wadley. Syracuse: Syracuse University Press Ricolfi, L. 2005. “Palestinians, 1981 2003.” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford and New York: Oxford University Press. Ridgeway, C., and S. Correll. 2004. “Unpacking the Gender System.” Gender and Society 18, no. 4: 510 531. Rosenberg, J. 2003. “Discerning the Behavior of the Suicide Bomber: The Role of Vengeance.” Journal of Religion and Health 42, no. 1: 13 20. Ruggi, S. 1998. “Commodifying Honor in Female Sexuality: Honor Killings in Palestine.” Middle East Report No. 206, Power and Sexuality in the Middle East. Ruwanpura, K. N., and J. Humphries. 2004. “Mundane Heroines: Conflict, Ethnicity, Gender, and Female Headship in Eastern Sri Lanka.” Feminist Economics 10, no. 2: 173 205. Salib, E. 2003. “Suicide Terrorism: A Case of Folie a Plusieurs?” British Journal of Psychiatry 182: 475 476. Schweitzer, Y. 2007. “Palestinian Female Suicide Bombers: Reality vs. Myth.” In Female Suicide Bombers. Dying for Equality? edited by Y. Schweitzer. City: Jaffe Center for Strategic Studies, Tel Aviv University. Shalhoub Kevorkian, N. 2002. “Femicide and the Palestinian Criminal Justice System: Seeds of Change in the Context of State Building?” Law and Society Review 36, no. 3: 577 601. Shalk, P. 1994. “Women Fighters of the Liberation Tigers in Tamil Ilam.” South Asia Research 14, no. 2: 163 195. Sherkat, D., and G. Ellison. 1999. “Recent Developments and Current Controversies in the Sociology of Religion.” Annual Review of Sociology 25: 363 394. Shulman, D. 1990. Tamil Temple Myths. Princeton: Princeton University Press.

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Skaine, R. 2006. Female Suicide Bombers. Jefferson, NC: McFarland. Smith, C. 2005. “Raised Catholic in Belgium, She Died a Muslim Bomber.” New York Times, December 6. Soltysik, F. 1976. In Search of a Sister. New York: Bantam Books. Stack O’connor, A. 2007. “Lions, Tigers, and Freedom Birds: How and Why the Liberation Tigers of Tami Eelam Employ Women.” Terrorism and Political Violence 19, no. 1: 43 63. Stark, R., and W. S. Bainbridge. 1987. A Theory of Religion. Toronto: Lang. Steele, J. 2004. “Bombers Justification: Russians Are Killing Our Children so We Are Here to Kill Yours.” The Guardian, September 6. Stern, S. 1975. With the Weathermen: The Personal Journal of a Revolutionary Woman. New York: Bantam Books. Stout, C. 2002. The Psychology of Terrorism. London: Praeger. Szczpanikova, A. 2004. “Gender on the Move: Gender and Family Relations among Chechens in the Czech Refugee Camp.” Master of Arts thesis, Central European University. http://www.chechnyaadvocacy.org/refugees/Gender%20roles%20among %20Chechen%20refugees%20 %20Szczepanikova.pdf. Tishkov, V. 2004. Chechnya: Life in a Worn Torn Society. Berkeley: University of California Press. Trautman, T. 1974. “Kinship and History in South Asia.” In Michigan Chapters on South and Southeast Asia, 7. Ann Arbor: Center for South and Southeast Asian Studies, The University of Michigan. Tzoreff, M. 2006. “The Palestinian Shahida: National Patriotism, Islamic Feminism, or Social Crisis?” In Female Suicide Bombers: Dying for Equality? edited by Y. Schweitzer. Tel Aviv: Jaffe Center for Strategic Studies, Tel Aviv University. Uzzell, L. 2005. “Profile of a Female Suicide Bomber in Chechnya.” www.Jamestown .org/publications. Vaillant, G. 1983. The Natural History of Alcoholism. Cambridge, MA: Harvard University Press. Valentini, T., et al. 1992. Women and Terrorism. New York: St. Martin’s Press. Victor, B. 2004. Army of Roses: Inside the World of Palestinian Women Suicide Bombers. New York: Rodale. Wade Ata, I. 1987. The West Bank Palestinian Family. London and New York: Routledge and Kegan Paul. Wadley, S. 1991. “The Paradoxical Powers of Tamil Women.” In The Powers of Tamil Women, edited by S. Wadley. New Delhi: Manohar. Walsh, N. 2004. “Russia’s Women Suicide Bombers.” The Financial Times, September 2. Warnock, K. 1990. Land Before Honour: London: Macmillan. Yalman, N. 1963. “On The Purity of Women in the Castes of Ceylon and Vialahar.” The Journal of the Royal Anthropological Institute of Great Britain and Ireland 93, no. 1: 567 599. Yom, S., and B. Saleb. 2004. “Palestinian Violence and the Second Intifada: Explaining Suicidal Attacks.” Middle East Theory and History Conference, University of Chicago, May. http://edandterror.wikispaces.com/file/view/Palestinian+Violence+and+the +Second+Intifada.pdf. Zakaria, F. 2004. “Suicide Bombers Can Be Stopped.” Newsweek, August 25. Zedalis, D. 2007. Female Suicide Bombers. Honolulu: University Press of the Pacific. Zelkina, A. 2000. In Quest for God and Freedom. London: Hurst & Company.

part iv DEMOCRACY AND CONSTITUTION MAKING

8 Decoding the Genesis of Political Order Jon Elster on Precommitment and Constitutional Processes in Eastern Europe Claus Offe

Constitutions limit the range of future action of those bound by them. Through such precommitment, it appears, political actors protect themselves from themselves, that is, they prevent themselves from carrying out actions whose consequences they would regret. From this perspective, actors even increase their potential for action by such self-binding if they thereby avoid making mistakes and can cooperate with other actors in a manner that is predictable for the latter. The beneficial link between self-binding and freedom has long been appreciated in the clever way Ulysses dealt with the temptations of the Sirens. Using Elster’s analysis of post-socialist constitutional policy as an example, this chapter investigates how the founding of a new constitutional order produces the presumed blessing of collective self-binding in only a very limited way, and why this is so.

1. the theory of action One can best describe the approach Elster uses in studying political transformation and modernization processes after the end of state socialism as “constitutional sociology.” Even before he began looking into the cases in Central and Eastern Europe (CEE), he applied it to the creation of the French and American constitutions at the end of the eighteenth century by examining in detail the debates of the constitutive assemblies in both countries.1 His later studies of transitional justice make use of the same method,2 which derives from Elster’s version of the sociological theory of action.3 The essentials of this theory and the approach on which it is based can be summed up in a few sentences. The starting point is always either individual actors or aggregate bodies made up of them. These actors have three identifying 1 2 3

See Elster, “Constitution Making in Eastern Europe,” 178ff. Elster, Closing the Books, and Elster, Retribution and Reparation in the Transition to Democracy. See Elster, Explaining Social Behavior.

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characteristics: they have desires (goals toward which actions are directed), beliefs (assumptions, held to be valid, about the motives behind others’ actions and the consequences of their own), and information (about conditions in the world). Beliefs can be affected by desires, which themselves are based on information but may also influence the process of acquiring information. Furthermore, a relationship exists between desires and information; one of the best examples for this is wishful thinking, in which beliefs distort fundamental information.4 How goals for action are generated is explained by one of the three human capacities that propel action (or a combination of them), namely emotions and passions,5 interests, and reason.6 Increasingly Elster takes an interest in the role of emotions as possible determinants of actions as well as of desires, beliefs, and information (and/or the way actors behave in acquiring information).7 Actors understood in this manner then enter into interaction. Insofar as this extends beyond the mere acting out of affects, it can occur in one of two modes: arguing, in which one side assumes its counterparts are able and willing to recognize unprejudiced and impartial reasonable solutions, and bargaining, in which one actor pursues his or her own interests without regard to a counterpart’s (or a third party’s) ability to reach insights based on reason.8 Actors do this by applying their resources in a given situation (such as cooperative relations within a coalition) to negotiations so as to induce the holders of opposing interests to make concessions. To this end, actors may make use of (negative) threats and warnings or (positive) conditional promises of rewards and predict favorable outcomes serving the opponent. All of Elster’s works on constitutional sociology address the following question: What are the motives that drive actors and can therefore explain the results of their interactions? The only valid explanations for action (and its evaluation based on criteria of rationality) admitted by Elster are mental states that can be demonstrated to exist before the action begins in the actors themselves – not the interpretations, knowledge, 4 5

6

7 8

Ibid., 11. An important differentiation: emotions have variable “half lives.” A fit of rage is short lived and impulsive, whereas prejudices such as anti Semitism are deep seated and long lasting. In Elster’s terms, prejudices are “standing emotions” (Elster, “Reason, Interest and Passion in the East European Transitions,” 501). For the sociological context related to constitutions in particular see Elster, “Ways of Constitution Making,” 131 ff; and Elster, “Reason, Interest and Passion in the East European Transitions.” Elster, Explaining Social Behavior, chapter 12. Elster, “Consenting Adults or the Sorcerer’s Apprentice?.” The mode of arguing appears catego rically preferable to bargaining only at first glance. Upon further consideration it emerges namely that a public exchange of arguments can lead to participants’ taking an inflexible stand on a matter, with unfortunate results. Their vanity (Elster, “Ways of Constitution Making,” 135) or fear of being exposed as lacking in principles and character can prompt them to hold fast to positions once taken even when good reasons for abandoning them have become apparent. In negotiations behind closed doors, by contrast, participants can revise statements, demands, threats, promises, etc., without damage to their prestige and self respect. To this extent such privacy make it possible to reach compromises more quickly.

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and assessments that an observer may use to explain a situation. (Elster vehemently criticizes explanations based solely on an observer’s perspective as “functionalist”; equally he rejects any use by observers of the consequences of other people’s actions as a key to understanding their causes.)

2. self-binding Elster analyzes action in the context of constitution making in terms of one central idea, namely precommitment by actors. Precommitment is present when three conditions9 are fulfilled: Precommitments are social actions – not just the making of resolutions or the forming of intentions. These actions refer to the actors’ own behavior in the future and cannot be reversed, or only at some cost (at least for the time span to which the precommitment pertains). Such selfbinding moves are designed to either eliminate certain future options for action or to impose “costs” (economic, political, temporal, psychological, etc.) on them that would not occur without this precommitment. Such action relating to one’s own future action (meaning that it is “reflexive” in a precise sense) serves to overcome an intertemporal conflict of motivation. In this process, both the present action – which is “now” to be brought under control through an elimination of options available in the future – can be driven by either of the three kinds of motives (interests, passions, reason). This means – as Elster sees with growing clarity – that an idealized variant of precommitment by no means deserves a privileged position in the analysis. We encounter this idealized variant when actors, employing their reason in the calm weighing of arguments, take steps in the present to ensure that they will not fall victim to their own passions or interests when taking action in the future. Yet the exact opposite case is not inconceivable: Guided by my own interests “now,” I take precautions to restrict the possibility that I might be dissuaded by rational arguments from pursuing my interests at some point “later.”10 Elster is here evidently concerned with a classic question of theoretical models for the relationship between acts of foundation and political order, genesis and validity, the contingency of decisions and the robustness of rules, or between motives for action and resulting institutional structures. It is not possible here to explore the many references inherent in Elster’s model of social action and their relations to the theories of Weber, Freud, Pareto, Habermas, and others. In any case, Elster is concerned, like the authors just mentioned, with studying one of the core questions of social theory: how to explain social action and the stability of the social order that emerges from this action (and will guide it in the future).11 From this perspective it is obvious that investigating the question of how constitutions originate is of great interest to social theorists, along with the question 9 10 11

Elster, “Don’t Burn Your Bridge Before You Come to It,” 1754 ff. Ibid., 1756 ff. See Elster, Explaining Social Behavior.

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of how such constitutions then function for the members of a “constituted” political community as negotiated and binding premises for future action. This also holds true for the “paradox of democracy,” which according to Elster consists in the seemingly presumptuous ambition of forward-looking “founding fathers” to create something “eternal” and perennially valid.12 From a backward-looking perspective of those living under constitutional rules, the recollection that a political order originated in a discretionary act that was contingent on specific historical circumstances may well undermine the bindingness of this order and make later generations ask why they should continue to follow precepts laid down by deceased forbears.13 The “second nature” of a constitutional order established by “founders” is – as far as its lasting binding power is concerned – actually a power of a secondary nature, not a power stemming from divine creation of an eternal and immutable natural law. Hence Elster stresses categorically the fragility of all self-binding: . . . there is nothing external to society . . . [S]ocieties cannot make themselves unable to renege on their precommitments.”14 Nevertheless this does not exclude the possibility of founders taking steps to make it as difficult as possible for institutional “renegades” to carry out their (perhaps arguably opportunistic) intentions. For Elster, one of the most important such provisions is the division of powers. Horizontal checks (such as those between the two chambers of a legislative body) make it all but futile for one chamber to ignore the limits imposed on its legislative powers by the constitution, since the other chamber would not be willing to agree to it.15 In this way, what Elster strikingly calls the “paradox of omnipotence”16 can be overcome with good chances for success, that is, a situation in which an omnipotent ruler can do whatever he or she wants – except for one thing, namely to render him- or herself incapable of violating established rules. The fragility of collective precommitments established by a constitution does not necessarily result only from such “impotence of omnipotence.” It can also be based on the fact that a constitution may no longer “fit” altered circumstances (or autonomously altered preferences). Constitutions are by definition precommitments, and as we have seen, they function by excluding particular options for future action. Among these excluded options there may be some that later actors would like to be available under circumstances that could not possibly have been foreseen by founders. If this need cannot be met by means of a court’s interpretation of the constitution or amendment to the constitution in a constitutionally prescribed manner, the excluded option (such as the use of torture despite its

12 13 14 15 16

As suggested by Elster’s sarcastic title, Born to Be Immortal. See Holmes, “Precommitments and the Paradox of Democracy.” Elster, “Don’t Burn Your Bridge Before You Come to It,” 1760; emphasis in original. Ibid., 1773. Elster, Ulysses Unbound, 147 149; similarly Elster, “Don’t Burn Your Bridge Before You Come to It,” 1773, where he offers a definition of the paradox: Someone is too powerful to precommit himself if he cannot “make himself unable to untie himself from the mast.”

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prohibition)17 may sometimes be resorted to with the argument that the drafters of the constitution could not possibly have intended it as a “suicide pact,” as refraining from violating the constitution would entail virtually suicidal consequences for a political community.18 For Elster, the case of drafting a constitution has paradigmatic significance, in that it concerns securing autonomy through precommitment, a problem central to both sociology and moral theory. The author has virtually no equal among contemporary social scientists as a specialist on human weaknesses.19 First of all, in his view human beings are often short-sighted, egoistic, emotion-driven, addiction-prone, and weak-willed in their actions, thoughts, and wishes; in the choice of their beliefs they tend to adapt their preferences to the situation20 and make cognitive errors because their thinking is clouded by opportunism. Social life is characterized by its high potential for irrationality. In a political context, one must think of two pathologies that are mirror images of each other: despotism (understood as excessive use of power) and anarchy (understood as insufficient generation of power). Preventing both is probably the core meaning of political constitutions. The second feature of the practice of self-binding is the reflexivity of human agents. At least “in principle,” social actors are reflexively capable of dealing rationally with these weaknesses (if empirically by no means at all times and in all situations),21 that is, capable of recognizing them as weaknesses the possibly negative consequences of which they seek to avoid. Thirdly, on the basis of such insight – and given the necessary heroic ability to view themselves from a distance – they can take practical measures to prevent these difficulties and institutionalize rational self-rule, to the end that “Peter when sober can act to bind Peter when drunk.”22 One wonders, however, whether the circumstances under which constitutions tend to be written (or rewritten) – namely in notoriously turbulent situations after a regime collapse or military defeat, or in situations of enthusiastic new beginnings23 – are those in which the capacity for such heroic self-distance is most likely to prevail.24 Furthermore the useful distinction between “standing passions” (such as anti-Semitic prejudice) and 17 18

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20 21

22 23 24

Levinson, “Precommitment and Postcommitment.” Posner, Not a Suicide Pact; in discussing the dilemma posed by excessive rigidity or “too much” flexibility, Elster contents himself with observing that “we may not be able to draw the line between temptations and legitimate exceptions.” Elster, “Don’t Burn Your Bridge Before You Come to It,” 1787. In a later monograph, Alchemies of the Mind, Elster offers an extensive and systematic collection of emotions and acts that may follow from them. See also Elster, Explaining Social Behavior, chapter 8. See Elster’s Sour Grapes. The related pessimistic hypothesis runs: “Constitutions are more likely to reflect flaws in national character than to counteract them”; Elster, “Constitution Making in Eastern Europe,” 176. See Hayek, The Constitution of Liberty, 180. Grimm, “Integration durch Verfassung.” Elster, “Ways of Constitution Making,” 135, 138; and Elster, Ulysses Unbound, 176.

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ephemeral and impulsive emotional states (such as Peter’s intoxication) leads to the question of whether it is not precisely the former which precommitment is meant to protect against, and whether “Peter” is then the right person to come up with such measures.25 The classical example for the rationality of successful self-binding occurs in the myth of Ulysses, who definitely acted heroically when, realizing how he might be seduced, he gave an order, which he could not countermand, to the crew to tie him to the mast of the ship.26 This model of foresighted, beneficial self-binding leaves one question open, however, apart from the question of heroism and whether paternalistic procedures (such as that imposed by the occupying forces on the drafting of Germany’s Basic Law in 1949) can function as a substitute: What happens when an actor sincerely (as opposed to “opportunistically”) wishes to undo his or her precommitment,27 that is, not from a weakness of will power (akrasia) but on the basis of an authentic and wellconsidered change of mind – or because the circumstances in which the actor finds him- or herself have undergone a profound change?28 Here the principle is obviously meant to prevail that in cases of national emergency or other urgent practical needs, fundamental constitutional provisions must be open to revision or temporary suspension, since the founding fathers could not have intended to make the constitution so inviolable that it becomes a potential suicide pact.

3. who is the “self” in “self-binding?” Even on an individual level, there is something inconsistent in the concept of “self-binding.” In a trivial sense, someone must have his or her hands free in order to tie something, and as soon as the person has begun to tie his or her own hands, they are no longer free. In the case of the mythical tale of Ulysses, we know he solved the problem by ordering his crew to tie him to the mast (by making use of a preexisting relationship of authority). (And the clever idea was not even his own but that of his lover Circe, who gave him that piece of advice on his departure.)29 When we speak in a metaphorical sense of someone binding him- or herself, we do not assume that this person is a “pile of snapshots” but a consistent self existing over time and capable of a certain “self-control.” As Elster clearly sees, the conceptual transition from individuals – who force themselves by their own action to carry out good intentions and disable themselves to fall victim to temptations – to a collective or political polity that places itself under a constitution is quite problematic: Societies are not individuals writ

25 26 27 28 29

See Sunstein, “Constitutionalism, Prosperity, Democracy,” 385. Elster, Ulysses and the Sirens. Ibid.,108 109. Elster, “Constitutionalism in Eastern Europe,” 482. See The Odyssey, book 12, 50 55.

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large.30 In the case of individuals, a part of the self can indeed take over the role of the “better self,” but the same does not apply to collectives, at least not as obviously. The initiators of a constitutional form of precommitment bind not only themselves, after all, but others as well, usually those actors who constitute a minority at the time (in addition to the as yet unborn members of future generations). And they do so not only by the result of their actions; in some circumstances, it is also their intention, which may be quite partisan in nature. In this respect, the moral dignity and autonomy that individuals acquire by following their conscience have no complete analogue in the kind of constitutional precommitment resulting from power struggles within a collective or political community.31 Societies have no “self,” at least not in the same sense that individuals do, and “constitutional issues are issues of power,”32 in the double sense that they provide not only a foundation for a collective ability to act (power to do something) but also social and political hegemony (power over others). In contrast to political theorists, constitutional jurists, or historians, Elster takes an empirical approach to the topic of actors who create a political order by drafting a constitution. He observes the moves of individual and collective actors in the process of creating post-communist constitutions in CEE and is more interested in explaining the process in empirical terms and analyzing the causes at work33 than in the normative quality of the results.34 The author sees his own role as that of a contemporary privileged to witness a “gigantic natural experiment.”35 The term “social mechanism,” which has come to play an increasingly central role in Elster’s later work, is an important point of orientation. In his view, “mechanisms” in social life are recurring combinations of intentions, actions, and their consequences, and he regards identifying, describing, distinguishing, and systematizing them as the true purpose and highest achievable goal of the social sciences.36 In contrast to participants in historical processes of constitution drafting (i.e., the constitutional “waves” after 1787, 1848, 1918, 1945, and 1974), the actors after 1989 were in a situation in which they could all refer to pre-communist constitutions in their own countries, which were also all members of the Council for Mutual Economic Assistance and/or the Warsaw Pact (with the exception of the two post-Yugoslavian Balkan countries, Slovenia and Croatia). They differ 30 31 32

33

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Elster, Ulysses Unbound, 167 ff. Here Elster is clearly revising his earlier view, as the title Ulysses Unbound indicates. This was Ferdinand Lassalle’s famous formulation in his constitutional speech of December 10, 1862. Elster, “Constitutionalism in Eastern Europe,” 449; and Elster, “Making Sense of Constitution Making,” 16. See Elster, “On Majoritarianism and Rights,” and Preuß, “Patterns of Constitutional Evolution and Change in Eastern Europe.” Elster, “Constitution Making in Eastern Europe,” 170. See Elster, Retribution and Reparation in the Transition to Democracy.

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from their predecessors above all by the fact that in addition to political transformation, they had to deal with transformation of the economic order, not to mention (in most cases) a process of nation building involving political, cultural, and sometimes territorial issues.37 The latter problem is particularly thorny in CEE because – for historical reasons and almost without exception – national and ethnic boundaries do not coincide. Elster describes two structural variants: internal inhomogeneity (several ethnic groups living in one state, e.g., Yugoslavia), and (potentially irredentist) external inhomogeneity (an ethnic group inhabiting several neighboring nation states, e.g., the case of ethnic Hungarians).38 As far as political transformation is concerned, Elster correctly predicted that, in addition to drafting a constitution, a further problem existed with regard to constitutional pacification and political integration: The majority of the population (or at least of the new elites) demanded retribution and punishment of the elites in the old regime and their abettors and called for practices of “backwardlooking” or transitional justice.39 Elster demonstrates convincingly40 that such a demand far exceeds what systems of criminal justice can accomplish and is ultimately irreconcilable with principles of the rule of law (such as nonretroactivity and demonstration of guilt in each individual case). Finally, as far as economic transformation is concerned, Elster reckons with a “deep-seated egalitarian feeling in the population”41 derived from the envydriven type of egalitarianism that prevailed under the old regimes.42 This must also be regarded as an extremely unfavorable premise for establishing property rights and fair market competition in new constitutions and hence furthering economic reconstruction.43 In sum: “Political developments all over

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Elster, “When Communism Dissolves”; Elster, “Constitutionalism in Eastern Europe,” 448 ff; Offe, “Capitalism by Democratic Design?” Two factors typical for the region lead to conflict and thus make territorial delimitation and resolution particularly difficult: 1) As a rule, internal minorities in these countries are not distributed in such a way as to make it easy to create a federation along clear cut ethnic lines, thus avoiding the problem of “a minority within a minority”; and 2) in many cases, internal minorities are simultaneously external members of nation states who are remembered by the majority as former “imperial” powers and hated initiators of repression and violence (this applies to an extent to Turks in Bulgaria; Hungarians in Slovakia and Romania; Serbians in Croatia, Bosnia, and Kosovo; Russians in Latvia and Estonia; Germans in Poland; and also Czechs in Slovakia. See Offe, “East European Exceptionalism as a Challenge to Democratization.” Elster, “Reason, Interest and Passion in the East European Transitions,” 499. Elster, “On Doing What One Can”; Elster, “Reason, Interest and Passion in the East European Transitions,” 515; and Elster, Closing the Books, 84 ff, 116 ff. Elster, “Constitutionalism in Eastern Europe,” 453. This variant of egalitarianism is “upward looking” and motivated by the suspicion that someone might be better off than oneself. It corresponds to the strategy used by political elites to combat all kinds of vertical social differentiation (with the single exception of their own privileges and those granted by them). This is diametrically opposed to “downward looking” egalitarianism, which is motivated by solidarity with those worse off than oneself. Elster, “Making Sense of Constitution Making,” 16.

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Eastern Europe are likely to be heavily shaped by [a] potent mix of hatred, vengefulness, and envy.”44 Yet quite apart from this explosive brew of emotions, Elster sees the desiderata for economic reform (property rights and liberalization of markets) and the simultaneous need for political reform (drafting of constitutions and democratization) as fundamentally incompatible; at least he develops a series of highly plausible assumptions for models, which permit only one conclusion in case they are empirically confirmed: “[F]ull scale reform is impossible.”45 This bleak diagnosis (and prognosis) is consistent with those of other scholars writing in the early nineties. Jowitt46 uses the metaphor of a “Genesis environment,” a situation in which the earth was “a formless void”; other authors see “East European societies left without institutions and without a system,” and speak of an “institutional vacuum.”47 Elster concurs, concluding his first paper about Eastern Europe with the statement: “The main difficulty of the constitution-makers in Eastern Europe is that they are operating in a complete vacuum.”48 To the metaphor of the vacuum in later papers, he adds an “autopoietic” one, as it were: “rebuilding the boat in the open sea.” In an undertaking of this kind, no external supplies are available, only those already on board, which must be mobilized ad hoc:49 a model of a most profoundly aporetic situation in which, one might say, solutions for the three parts of the total problem (political reform, economic reform, ethnic and/or transitional justice conflicts) stand in each other’s way. Elster ceases to use this metaphor in later writings, however. He mentions in passing the probable reason why CEE countries have in fact experienced a series of “pleasant surprises” and at least partial successes in their consolidation50 despite continuing defects in the economy and constitutional policy: the demands of the Council of Europe in the latter area, above all, those regarding human rights and the rights of minorities, and the prospect of their joining the EU, which imposes conditions with which they had to comply to achieve “admission” (a mechanism that was effective at least until the point at which such admission was eventually granted in 2004 and 2007, respectively). Hence the EU has been a key external actor in the process of modernization throughout the CEE region.51 During the initial phase, the IMF also played an influential external role in some countries, particularly Hungary.

44 45 46 47 48 49

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Elster, “Constitutionalism in Eastern Europe,” 453. Elster, “Constitution Making in Eastern Europe,” 172 173. Jowitt, New World Disorder, 262 268. Bunce and Csanádi, “A Systematic Analysis of a Non System. Elster, “Constitutionalism in Eastern Europe,” 480. Elster, “Constitution Making in Eastern Europe”; and Elster et al., Institutional Design in Post Communist Societies. See Schneider and Schmitter, “Liberalization, Transition and Consolidation.” Elster, “Constitution Making in Eastern Europe,” 192.

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4. options, sequences, interests The three aspects of the initial “vacuum” that prevailed after the collapse of the old regime, it appears, made a rapid and successful establishment of a constitutional order based on democracy and the rule of law exceedingly improbable. At the same time, however, all those concerned, both in the CEE countries and abroad, viewed the necessity of pursuing such an order as unarguable, since they all were searching for a way out of the state of nature existing after the end of communism.52 In Elster’s view, the unanticipated as well as irreversible collapse of the old regime was triggered by the synergies of three events: Gorbachev’s withdrawal from the Brezhnev Doctrine, the Roundtable Talks forced on the Polish government by Solidarnosc, which set an example, and the decision by the Hungarian Foreign Minister Gyula Horn to violate existing agreements and open the border to Austria for those East German refugees camped out in tents in his country. This concatenation of events, along with the effective abolition of state party monopolies in the East, caused a constitutional vacuum to arise, which was then filled by actors in the various nations who drafted constitutions following quite different paths. Every democratic constitution originates in a sequence of decisions over time; there is no “big bang,” a putsch, or a single act of creation by a sovereign lawgiver such as Lycurgus or Solon. The rule is: “The more democratic the substance of the constitution, the more democratic is the process by which it is adopted.”53 (The Japanese democratic constitution of 1946 represents an exception, since it was worked out in detail and imposed on the country by the American victors.) Hence individual decisions can be represented on a time line. They begin with the convocation of an assembly tasked with drafting (and sometimes adopting) a constitution; the election or appointment of its members, and the official constitution of the assembly. Other steps include the adoption of procedural rules and a numeric key for representation of different groups. Decisions then must follow on the degree to which the debates will be public, the formation of committees and their assignments, all the way up to final passage of the document by a representative body or a constitutional referendum. Each step affects not only the substance of the content but also its procedural legitimacy, and each single one of them is a potential source of controversy.54 At the start of the process it must be decided how, by whom, with what majority, and within what time limits the future constitution is to be approved, as well as who should be authorized (and by whom) to draft a first version. In addition it must be 52

53 54

After 1989, the GDR was the only instance of a transformation country in which descent into a state of nature was excluded from the start, since fusion with the old Federal Republic was soon implemented. Whereas the other countries had to rebuild their boats on the open sea, the GDR (later the new federal Länder) had a dry dock and the best building materials at their disposal, if you will. Elster, “Ways of Constitution Making,” 124, 130. Elster, “Constitution Making in Eastern Europe,” 178 179.

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decided whether a completely new constitution is to be aimed at (as in Bulgaria and Romania) or patchwork revisions to an old one (as in Poland, the Cˇ SFR, Hungary) – or both, one after the other. This process can take the form of “preconstitutional” roundtable talks,55 which determine the modalities of elections to adopt the constitution (voting rights, the licensing of political parties, and possibly drafts of a complete document), but such talks are not the only option.56 A notable feature of the political transformation is that it was not “revolutionary” in the sense of depending on a break with or formal termination of the existing constitution, since it took place everywhere within the framework of the state-socialist constitutions previously in force. In fact, the transformation drew upon and applied for the first time the democratic provisions of existing constitutions that up until then had existed in name only.57 As Elster makes clear, the course and results of the Roundtable Talks (which took place in Poland, Hungary, the GDR, Bulgaria, and Czechoslovakia) were influenced by two factors: first, the (frequently inaccurate)58 beliefs that the two sides (state party and opposition) had formed about each other’s strength and also about the probable beneficial effect of particular rules for particular actors; and second, the potential for threats that each side could initiate during the negotiations (state repression vs. street demonstrations and rallies). Where there were no Roundtable Talks (as was the case in Romania, as well as in Albania and Croatia), the state parties tried to control voting rights and the drafting of a constitution in such a way that they would be able to maintain control and survive the unavoidable competition with new parties. The legitimacy of constitutive assembles (and thus also of the results of their work) depends on: 1) the process by which they were convoked (Were elections held or not? Was the assembly identical to the ordinary legislature or “unique”?) 2) the timing of their convocation (Did the opposition have a fair chance in the elections, or was it still organizing?) 3) the identity of the delegates (Did elite members from the old regime participate?). 55 56

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Elster, “The Role of Institutional Interest in East European Constitution Making.” Romania, where the constitution drafting process was initiated by the successor party to the communists, is the sole exception among the six transformation countries of the year 1990. Immediately after the fall of the monopoly party system of state socialism, however, an immanent process of altering the constitution following the rules of the existing constitution set in every where, and bordered on a total revision in the case of Hungary (Elster et al., Institutional Design in Post Communist Societies, 70). These kinds of revision of the old constitutions must be distin guished from the creation of a new one. Elster offers a series of examples to show that in the initial phases of political system change, the communist governments had exaggeratedly optimistic expectations and greatly underestimated the opposition’s strength. Conversely, “in Czechoslovakia . . . the opposition underestimated the weakness of the regime and made several unnecessary concessions with far reaching consequen ces”; Elster, “Constitution Making in Eastern Europe,” 171, 190.

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Overall the situation is characterized by a markedly “thin,” highly transparent “veil of ignorance,” insofar as each of the participating actors operates with strong assumptions (some accurate, some wrong) about which decisions will lead to which particular advantages or disadvantages for his or her side.59 Once a constitutional assembly has been constituted or another authority has been granted the power to draft a constitution (e.g., an elected legislative body and its committees, or a panel of experts), then the result depends on the prevailing kind of internal communication and decision making in the mandated body. Elster typifies these with two sets of paired terms: impartiality versus interest and arguing versus bargaining (a distinction that has proved highly influential).60 The components of the first of these two supposed opposites are intertwined in such a way that (1) even decidedly nonpartisan actors must take interests into consideration to the extent that these will be critical for adoption of the constitution in the end, and (2) that even unscrupulous representatives of interests will be able to achieve success only if they can make them appear reasonable in nonpartisan terms.61 As far as the other pair of terms is concerned, the practice of arguing aims to convince one’s partner/opponent of the validity of one’s own assessments, whereas the practice of bargaining consists of using threats, warnings, and promises to get the opposite side to make concessions. Further differences between the two approaches consist in the fact that arguing takes place in public and “for the record,” thus exposing the proponents of arguments to the risk of becoming inflexible because of the danger of “losing face” in case they need or wish to make concessions later or change their position62 (the

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Elster stresses throughout the instrumental, interest oriented nature of the decisions: “A party that has a strong presidential candidate will push for a strong presidency in the constitution, whereas others will want to limit his powers.” The same holds not only for the assembly members’ interests regarding their own political parties (not to mention personal and economic interests) but also for their institutional interests. For instance, small federal states will push for equal representation in the second chamber (as in the United States), while the large ones favor representation based on population; Elster, “Constitution Making in Eastern Europe,” 182. The author finds examples at every turn for this kind of institutional self aggrandizement; see Elster, Ulysses Unbound, 161. Yet this could be a case of a hypothesis that can’t be refuted, insofar as parties may find themselves required in the service of their interests (as the thesis runs) to dissimulate their significance; Elster, “Ways of Constitution Making,” 133. One argument exists against “excessively cynical assump tions,” however: If all actions and words served exclusively strategic ends (and if this were generally known), then no motive would be left for clothing strategic interests in language oriented toward the common good; Elster, “Constitution Making in Eastern Europe,” 191. Yet the distinction between the strategic and nonstrategic use of collective precommitments, which is analytically indispensable, remains empirically blind. In this I see a major problem with Elster’s social theory. We have no reliable method other than relying solely on our powers of judgment if we want to decide whether someone is “motivated by the common good and not merely by the desire to be seen as motivated by it”; Elster, “Don’t Burn Your Bridge Before You Come to It,” 1771. Elster, “Constitutionalism in Eastern Europe,” 473 ff. Elster, “Ways of Constitution Making,” 132. Ibid., 135 136.

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“irreversibility effect” of arguing),63 whereas bargaining can be characterized inversely as publicity-averse and hence comparatively more flexible.64 The analytical strategy that Elster follows here (and in a series of studies on other subjects) is clear: At first, as has just been summarized, he stakes out the multidimensional possibility space open to actors after the collapse of the old regime. Then in a second step, using different examples for purposes of comparison (with a wealth of illustrative detail taken from his impressive familiarity with events and developments), Elster investigates why some actors set particular priorities and defined their interest and by what means (threats, warnings, promises) they prevailed over which other actors and thus blazed a trail through the possibility space. A rich variety of procedural options as to how to reach decisions suggests itself, and the same applies to the substantive content of the constitution. As a rule, the indispensable core elements of every constitutional text include a preamble (that is typically inspired by a backward- looking perspective and the lessons to be drawn from the country’s history); a catalogue of citizens’ rights and liberties; a designation of the institutions of government, their competencies, and the way in which they are to interact under a fixed division of powers; the procedures for constitutional amendments; and the establishment of a constitutional court empowered to interpret the text of the document and to apply its rulings to the review of legislation. Obviously, a multitude of possible arrangements exist for each one of these points. The choices actually enacted will be influenced by national traditions, previous mistakes and misfortunes in constitutional history, foreign experiences and models, the interests of actors in the country, and, last but not least, the technical competence of constitutional lawyers.65 In addition, the specific form of the constitution can be inspired to a greater or lesser extent by the “spirit” of constitutionalism – that is, by a political theory that takes its orientation from the value of a lasting balancing and limitation of the constituted powers of the state so as to secure freedom. At the same time, constitutionalism provides for possibilities for amending the constitution, but restricts them (e.g., by requiring qualified and/or double majorities or through procedural delays built into the process) in order to prevent economic and political interests from intruding on the constitutional order. Various anti-majoritarian provisions can also serve this purpose. All of this provides for a sense of reliability, predictability, and confidence on the part of citizens who come to feel that they know what to expect concerning the principles and procedures by which important and potentially highly divisive issues in social and economic life are to be resolved.66 Above and

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Elster, “Constitution Making in Eastern Europe,” 183. Ibid., 181. Elster, “Constitutionalism in Eastern Europe,” 472. Ibid., 465, 470; Elster, “Constitution Making in Eastern Europe,” 175; Elster et al., Institutional Design in Post Communist Societies, 63ff; and Preuß, “Patterns of Constitutional Evolution and Change in Eastern Europe.”

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beyond these core elements of the constitution, laws regulating parties and elections are necessary steps on the path to rebuilding a political order, as is legal regulation of the media and the central bank. Founding elections in the early nineties established constitutional assemblies that functioned at the same time as regular legislative bodies. According to Elster, the interests that came to play a key role67 were not so much the delegates’ personal concerns (e.g., regarding their immunity68) as the political parties’ interest to gain political power69 and institutional interests.70 One finding (rather weakly supported) is that parliaments generally represent their own interest as a body in acquiring a strong position in the constitutions (which they themselves are creating). Another causal mechanism, which unquestionably had a considerable influence on the drafting of constitutions, was pressure from the Council of Europe on the subject of human rights, which was further increased by budding ambitions in the transformation states to join the EU and the conditions that were expected to be imposed.71 External causal effects existed further in the form of successful foreign constitutional models (especially the German, French, and Spanish cases) and advice provided by foreign professional experts. One source for the inspiration and justification of individual proposals (e.g., for the introduction of a senate in Poland and Romania) was furthermore the constitutional tradition that had grown up in most of the transformation countries in CEE in the period between the two world wars. By contrast and unsurprisingly, the drafters’ reference to the former state-socialist regime and its arbitrary rule was antithetical; in a number of cases, this led to the introduction of a strong constitutional court according to the German model. Yet there are also continuities here, as in the pronounced tendency of drafters in the post-communist transition to proclaim extensive social and economic rights, some of which go far beyond the limit of what could conceivably be fulfilled.72

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Elster, “Constitution Making in Eastern Europe,” 192, 213; and Elster, The Roundtable Talks and the Breakdown of Communism. Elster, “Ways of Constitution Making,” 132. “Parties tend to favor the arrangements that favor them,” yet “they tend to argue for these arrangements in impartial language”; Elster, “Ways of Constitution Making,” 133. Elster care fully registers the cases in which the hypothesis that institutional self interest will prevail in the constitutional process does not apply (namely the rights of parliament in the case of Hungary and electoral law in the case of the Czech Republic) but does not attempt to explain the failure of his hypothesis in these cases; Elster, “Reason, Interest and Passion in the East European Transitions,” 507 509. Elster would violate the logic of his own research program, which analyzes motives and is “reductionist” in this sense, if it did not expressly call for the disaggregation of “institutional” interests into the “personal” interests of the members of institutions (e.g., parties, parliaments); Elster, “Reason, Interest and Passion in the East European Transitions,” 501. Elster, “Ways of Constitution Making,” 128. Elster, “Making Sense of Constitution Making,” 16; Elster, “Constitution Making in Eastern Europe,” 191 194.

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5. mechanisms of constitution making and prudential practical rules To be sure, reasonably well-informed newspaper readers are unlikely to be surprised by any of these findings, and neither by the thesis that a large number of disparate forces, motives, and interests played a role in the constitutional political process in the period and region under investigation. Elster himself expressly disclaims any ambition to offer a new kind of “theory” about the process of drafting post-communist constitutions as a whole or prognoses about the course this will take in the medium term. Instead his texts offer splendidly researched details, stimulating comparisons, original hypotheses of relatively limited scope, and reliable presentation of important contemporary data; it is precisely in their sum and variety that they confirm Weber’s dictum from his essay on “objectivity”: “The stream of infinite events rolls constantly toward eternity.”73 It is clearly not Elster’s ambition to measure this stream in its entirely or to determine what direction it is taking, let alone offer a normative assessment. His intention is rather to deduce and systematize, in a detached manner, the “social mechanisms”74 at work in the material that this stream washes up. They are of interest and worthy of note precisely because they represent building blocks of social life, so to speak; they appear without a specific context, and one is just as likely to encounter them in the drafting of constitutions as in school classes, in business enterprises, and in the practice of parliamentary committees – in all fields of “social behavior.” Normative considerations related to drafting a constitution in an optimal manner (and the procedures involved) are not entirely absent but play a somewhat marginal role and stand outside the systematic analysis, as it were. What we have instead are plausible but sometimes rather unoriginal practical rules, which actors will easily tend to adopt if they have become convinced of the significance and possible distorting effects of Elster’s mechanisms. Thus, drafting a constitution should be left to a specially elected constitutional assembly because every regular organ of government would only pursue its own institutional self-interests if assigned this task. An optimal balance between public and nonpublic deliberations must be found that takes into account the specific advantages of both modes of communication. The role of experts should be strictly limited; the time allotted to deliberations should be fixed in advance, and the site should be one that lends symbolic weight to the unifying cultural heritage of the nation yet is distant from current struggles and pressures (as the town of Weimar was in 1919).75 All arrangements that allow time for passions to cool are welcome, as well as those that

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Weber, The Essential Weber: A Reader, 393. Understood as “frequently occurring patterns of social interaction” (Elster, “Constitution Making in Eastern Europe,” 194). All these recommendations can be found in Elster, “Ways of Constitution Making,” 137 138.

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can contribute to making the “veil of ignorance” less transparent.76 All these suggestions, however, do not answer the question of how “good” a constitution is, but merely the question of what a sensibly organized process for drafting a constitution would look like. Accordingly, the picture that Elster’s essays paint of the current political and economic realities in the region under study is remarkably full of gaps. The author is focused on how constitutions come into being, much less so in what they accomplish once adopted and becoming operative. The author explicitly states, “I consider only the middle phase of transitions, thus ignoring both the end-game of the old regime and the period during which the new regime moves towards an equilibrium.”77 This is not meant as criticism, only as an observation that confirms Elster’s stated selective interest in developments in the region. It is limited to the extent that the process of drafting post-communist constitutions can provide examples, illustrations, and refinements for a micro-theory of social “mechanisms.” If one were to take Elster’s research on motivation for action itself as an object for the study of motivation, then the result might be: The comparative description of the genesis of post-communist constitutions, presented on the basis of a great deal of research, is directed not so much at the constitutions themselves; its primary purpose is “merely to illustrate the role of the various motivations.”78 The author’s own real intellectual interest is thus in identifying recurring patterns of social action and the motivations that drive them, which can be categorized by pairs of terms (such as arguing vs. bargaining, threats vs. warnings, passions vs. interests vs. reason, wants vs. wishes, precommitment vs. “suicide pact”)79 and at the same time illuminated in both their cognitive complexity and moral ambivalence through Elster’s sharpsighted yet sensitive approach. The study of driving motivations of action gains particular intellectual acuity (and also rhetorical brilliance spiced with sarcasm) when he wants to pinpoint untruthfulness in agents and their actions – that is, phenomena such as deception and self-deception; disguising, rationalizing, or simulating motives; dishonesty and hypocrisy; the opportunistic adaptation of preferences and beliefs to situations; strategic voting and preference mis-revelation80; making false promises, deviating from one’s own “rightly understood” interests if it is opportune to do so, etc. All of these behaviors violate the norms of sincerity (and/or truthfulness) and of actors’ rational dealings with themselves.81

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Elster, “Don’t Burn Your Bridge before You Come to It,” 1765. Elster, Ulysses Unbound, 142 Elster, “Reason, Interest and Passion in the East European Transitions,” 502. Elster, “Constitutional Courts and Central Banks.” Elster, “Studying Transitions: Constitution Making and Transitional Justice,” 142. Elster, “Constitutional Courts and Central Banks.”

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6. genesis versus function of constitutions Compared to political scientists’ common patterns of policy analysis, Elster’s microscopic investigation of the genesis of post-communist constitutions reveals a symptomatic gap. In the analysis of policies and policy areas we normally apply the notion of a policy cycle, in which at least three successive phases can be distinguished: 1) the phase of perceiving the problem, agenda setting, aggregation of inputs (which according to Elster consist of interests, reasons, emotions) 2) the phase of policy output 3) the phase of implementation and observation of a policy’s real effects (policy outcome or impact). As the political process continues, the outcome then leads to evaluation and in some cases to determination of what calls for revisions and corrections, which then stand at the beginning of a new cycle. It is the third phase of this sequence that typically remains obscured in Elster’s investigations. What effects and consequences (be they intended or unintended, positive or negative) the newly created constitutions will have and how these effects may possibly be connected – or entirely unrelated – to the mode of their coming into being – none of these “later” questions are extensively addressed. (I suspect that this blind spot of Elster’s constitutional sociology is strictly due to a research agenda built on his theory of “social behavior”: Constitutions are institutions; they are not themselves actors, but enacted constraints upon action. Hence they cannot act, and sociological explanations deal exclusively with actions, not functions.) Thus keywords that one would largely seek in vain in the segment of Elster’s work discussed here include macro-social conditions such as the uneven course of the privatization process; the size of political corruption and the apparent incapacity of new constitutions to cope with issues of “good governance”; negotiations with the EU and its regime of conditionalities; the fact that many of the CEE economies have turned into dependent economies; the dynamics of migration and bans on migration; poverty, inequality and social rights; the underground economy and informal sector; direct foreign investment; the short- and mediumterm consequences of eastern enlargement of the EU; the development of party systems; the (in)stability of governments; developments in the area of the media and intelligence services; the growing significance of right-wing populist parties and movements; symptoms of a pervasive sense of political alienation and disaffection; the political importance of religious groups and nationalism; and many others, all of which affect the “equilibrium” (or its opposite) achieved by the new constitution. If it is the mission of constitutions and the mandate of constitution makers to chart a set of rules and constraints that will allow the political community to consolidate itself by providing an effective and legitimate framework that allows for the continuous and orderly processing of all kinds of conflicts, then these presumed functions of a constitution (which also may

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motivate at least some of the constitution makers) receives less attention in Elster’s analyses than they arguably deserve. To be sure, Elster does at various times mention, for example, that property rights must be reliably and predictably assured in a constitution, since this is a prerequisite for economic recovery. Only when the state has placed its own powers under the rule of law does it create a basis for investors’ confidence; for from that point on what they seek to accumulate is no longer wealth, but capital.82 The argument that constitutional commitments are efficient plays an important role for Elster; their greater rigidity (in comparison to simple laws) helps to expand actors’ time horizons and lower the transaction costs that would otherwise be wasted on “unnecessary” policy disputes about allocation of resources. As a result it could be preferable to have a constitution of any kind whatsoever to having none.83 On the other hand, Elster makes repeated references to the “illiberal” character of some provisions of the Romanian and Bulgarian constitutions, which, for instance, provide insufficient protection for minorities.84 Constitutions may also “be out of line with the stable preferences of a large majority of the citizens.”85 All of these possibilities make sense and can be documented with examples. The questions that remain unanswered here, however, are these: Can one ascribe to the constitutions adopted and to their individual provisions observed real effects on the economy, society, and politics of the transformation countries – and how should one evaluate these effects with respect to the fair institutionalization of conflict, economic efficiency, social and political integration, the stability of governments, etc.? Such an analysis could explain initiatives to revise the constitution (if the evaluation had a negative result) or lead the observer to make recommendations to that effect. In short, such questions could complement the bottom-up perspective that Elster has used so persuasively, which reconstructs and explains constitutional provisions from the motives of actors, with a top-down perspective, from which actors and their motives are treated as dependent variables, whereas the constitutional order itself and its institutional actors are treated as independent ones. Only from this complementary functional perspective could the by no means trivial question be answered: whether (and in what respect) the constitutions created in the post-socialist phase have “stood the test of time” and should be judged successful, or whether the opposite is true, and the constellation of motivations that played a role in their genesis ultimately impairs their functioning. Of course it is neither my task nor my intention here to close the gap that I have highlighted. If one wanted to do so, it would first be necessary to determine whether it is at all realistic to expect constitutions (and especially newly created 82 83 84 85

Elster, Ulysses Unbound, 148 149. Ibid., 154 156. Ibid., 157. Ibid., 165.

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ones) to function as civilizing forces on social, economic, and political life and to provide a self-supporting social order. In other contexts, experts tend to react skeptically to the question of whether such favorable results can at all be expected from a European constitutional compact.86 Yet there is likely to be little dispute over the observation that the political constitution of a society (or even more generally: the governing practices of rulers) can itself be the source of strong emotions and passions, as political theory has established since Machiavelli at the latest. These emotions and passions can in turn play a crucial role in the stability of the institutional order in the state and society. Thus both Machiavelli and Max Weber’s proposals with regard to constitutional policy added up to techniques the state could use to manage motivation, for which Weber used terms such as “charismatic legitimacy” and “acclamation.” The feelings and passions that are induced by a national constitution and the paths established in it for the conduct of government cover a wide spectrum. They range from “constitutional patriotism”87 to national pride, veneration of dynastic elites, a chauvinistic sense of superiority, apathy and disaffection, contempt for particular ethnic and racial groups, readiness to use violence, mistrust, enmity, contempt, hate, fear, etc. Every form of government generates its own specific inner world of emotions, which conversely at least help to determine how robust that form is. Thus the argument frequently used to explain the collapse of the Weimar Republic is based on the claim that the life of its constitution produced emotionally detached adherents whose support was based solely on rational calculation and “lesser evil” thinking. For this reason the republic became incapable of resisting the National Socialists and the stronger emotions they generated. As early as the 1930s, this argument produced the following generalization: “Democracy is utterly incapable of meeting an emotional attack by an emotional counter-attack. Constitutional government, by its very nature, can appeal only to reason; . . . even its emotional ingredients are only a prelude to reason.”88 If one seeks the endogenously generated motivations and emotions of the post-communist constitutional states in the CEE region in an analogous sense, one will hesitate to advance the optimistic diagnosis that the new constitutional order has already consolidated itself successfully in political and emotional terms. Furthermore the endogenous motivations are difficult to distinguish from those stemming from the old regime, which in some circumstances demonstrate a long half-life (as “standing” emotions). A large number of events and personal impressions – one cannot call it more than that – lead me to judge skeptically the extent to which the new constitutions of the ten new member states of the EU have already achieved the goal of civilizing and institutionalizing political and social conflicts. The conflicts over Hungary’s draconic new media 86 87 88

Grimm, “Integration durch Verfassung.” Sternberger, Verfassungspatriotismus, and Habermas, Staatsbürgerschaft und nationale Identität. Loewenstein, “Militant Democracy and Fundamental Rights,” 428.

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law and other constitutional machinations of the Orban government are cases in point. The vehemence and aggressiveness with which parties often compete with one another by means of blatant attacks and personal defamation – in Poland especially, but hardly less dramatically in the Czech Republic, Hungary, Bulgaria, and Romania – make clear that by no means have all political camps taken to heart a constitutive distinction on which the viability of democracy depends, namely that between political opponents and “enemies.” Considerable parts of people’s working and daily lives are determined not by the constitution and legal system but rather by loosely formalized, often unofficial or even illegal forms of interest accomodation – beginning with the black economy (extending over a much larger sector than is typical for industrial societies at the level of development achieved in the region) and not ending with the high level of corruption in citizens’ dealings with public administrators and the providers of all sorts of professional services. A further example for the at best partially successful institutionalization of social conflicts is found in the field of transitional justice. Misdeeds committed under the old regime and their perpetrators are constantly being uncovered and serve in many instances as welcome ammunition in current power struggles. The memory of them has not led in any of the countries concerned to even halfway uncontroversial legal proceedings and punishment, disqualification (lustration), restitution and the symbolic acknowledgment of injustice suffered; hence no definitive contributions to resolution and reconciliation have occurred. In addition, the transformation process has divided the populations of these countries into two groups: winners and losers. The same holds true for ethnic and religious differences and the cultural battles resulting from them, which appear to be potentially far more explosive in the new EU member states than in the old ones. We have seen that Elster’s theoretical and empirical efforts have been directed in a some-what one-sided manner toward the process in which new constitutions were generated, while he refrains from investigating the functional side – the accomplishments, consequences, and failures of the new order in the “constitutional reality” of the new democracies. There are conceivably two different responses to this objection. First, it is an open question whether the shortcomings just alluded to in the constitutional realities of these countries, above all their insufficient capacity for resolving conflict, can be traced back to the motives that played a role in the genesis of their constitutions. And second, the possibility must be considered that deficiencies or “errors” in the constitutions of postsocialist societies account at most for just part of the previously mentioned political and economic pathologies. The latter can also be due to emerging circumstances in an ongoing transformation crisis that could hardly have been foreseen and could not have been overcome even if more perfect constitutions had been in force. For both reasons – the wrong motives and adverse circumstances – it is generally questionable whether the genesis and functioning of a stable form of

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rule can be spelled out according to the logic of precommitment. Elster’s argument about the paradox of the omnipotent dictator is convincing: Rule can be successful only if the ruler takes precautions against his or her own future moods and arbitrary acts, for only then does the ruler become predictable for other actors and hence capable of cooperating with them.89 But this way of creating order through “rational” self-binding must be neither the decisive motivation nor the actual result of a self-imposed limitation on options for action. I have mentioned a few cases in which this result is not achieved: first, the case in which the emotional stress of a collapse of the political order impairs the wisdom and sense of proportion of those who enter the scene as the generators of a new order;90 and second, the case in which the chains are “too tight,” to the extent that the rigid precommitments no longer allow a rational reaction if those shackled undergo a genuine (as opposed to an opportunistic) change of opinion, or if conditions change. One can also justify doubts about the rationality of precommitments if the self-binding results from strategic motives. In this case, actors are not creating a genuinely constitutional framework of rules that are intended to be valid for all and forever, but rather imposing limits on themselves in order to defeat an opponent here and now. Thus someone can reliably win a game of chicken if the person loosens his or her own steering wheel before the start and then throws it out of the car in view of his or her opponent just before the crash. Military leaders behave in a similar manner when they burn bridges behind them, thereby signaling to the opponent that they cannot force them to retreat, or when they burn their own ships, demonstrating to the crews that a mutiny would be utterly pointless.91 Precommitments can also be completely free from a political and moral motivation to create a stable order of government (and hence will not serve that function either). This is the case, for instance, when composers impose the rules of a particular system of harmony and other formal patterns on themselves (most rigidly in the case of twelve-tone music),92 and thereby create otherwise unattainable effects. Another example is the extreme limits that soccer imposes,93 since the rules of the sport abolish the enormous evolutionary advantages of walking upright, which consist among other things of freeing the front limbs and making them available for holding and moving objects. The severe penalty imposed for touching the ball or moving it by hand applies only during the time 89 90

91 92 93

Elster, “Constitution Making in Eastern Europe,” 173 and Elster (2000): 146. “[M]any, perhaps most, constitutions are written in turbulent and even violent times, when an earlier regime has collapsed or is in deep crisis” (Elster, “Don’t Burn Your Bridge Before You Come to It,” 1768). Elster, Explaining Social Behavior, 456 57. A hypothesis mentioned by Elster in conversation. Lewandowski mentions a similar argument using the sport of boxing: “A constraint theory of sport is designed to explain the embedded rationality and creativity of athletic action” (Lewandowski, “Boxing: The Sweet Science of Constraints,” 27).

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when the game is going on, and only to the players; it thus demonstrates the significance of strictly context-related self-binding to which no moral connotations are attached. References Bunce, Valerie, and Maria Csanádi. 1992. “A Systematic Analysis of a Non System: Post Communism in Eastern Europe.” In Flying Blind: Emerging Democracies in East Central Europe, edited by G. Szoboszlai Budapest: Hungarian Political Science Association. Elster, Jon. 1979. Ulysses and the Sirens: Studies in Rationality and Irrationality. Cambridge: Cambridge University Press. Elster, Jon. 1983. Sour Grapes: Studies in the Subversion of Rationality. Cambridge: Cambridge University Press. Elster, Jon. 1990. “When Communism Dissolves.” London Review of Books 12, no. 2: 3 6. Elster, Jon. 1991a. “Constitutionalism in Eastern Europe: An Introduction.” The University of Chicago Law Review 58, no. 2: 447 482. Elster, Jon. 1991b. Born to Be Immortal: The Constitution Making Process. Ann Arbor: University of Michigan Press. Elster, Jon. 1992a. “Making Sense of Constitution Making.” East European Constitutional Review 1, no. 1: 15 17. Elster, Jon. 1992b. “On Doing What One Can.” East European Constitutional Review 1, no. 2: 15 17. Elster, Jon. 1992c. “On Majoritarianism and Rights.” East European Constitutional Review 1, no. 3: 19 24. Elster, Jon. 1993. “Constitution Making in Eastern Europe: Rebuilding the Boat in the Open Sea.” Public Administration 71, no. 1/2: 169 217. Elster, Jon. 1994. “Constitutional Courts and Central Banks: Suicide Prevention or Suicide Pact?” East European Constitutional Review 3, no. 3: 66 80. Elster, Jon. 1995. “Consenting Adults or the Sorcerer’s Apprentice?” East European Constitutional Review 4, no. 1: 36 41. Elster, Jon. 1996. “The Role of Institutional Interest in East European Constitution Making.” East European Constitutional Review 5, no. 6: 63 65. Elster, Jon, ed. 1996. The Roundtable Talks and the Breakdown of Communism. Chicago: University of Chicago Press. Elster, Jon. 1997. “Ways of Constitution Making.” In Democracy’s Victory and Crisis, edited by Axel Hadenius. Cambridge: Cambridge University Press. Elster, Jon. 1999a. “Reason, Interest and Passion in the East European Transitions.” Social Science Information 38, no. 4: 499 519. Elster, Jon. 1999b. Alchemies of the Mind: Rationality and the Emotions. Cambridge: Cambridge University Press. Elster, Jon. 2000a. Ulysses Unbound. Cambridge: Cambridge University Press. Elster, Jon. 2000b. “Studying Transitions: Constitution Making and Transitional Justice.” In Kontingenz und Krise: Institutionenpolitik in kapitalistischen und post sozialistischen Gesellschaften, edited by Karl Hinrichs, Herbert Kitschelt, and Helmut Wiesenthal. Frankfurt: Campus Verlag. Elster, Jon. 2003. “Don’t Burn Your Bridge Before You Come to It: Some Ambiguities and Complexities of Precommitment.” Texas Law Review 81: 1751 1772.

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Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. Cambridge: Cambridge University Press. Elster, Jon, ed. 2006. Retribution and Reparation in the Transition to Democracy. Cambridge: Cambridge University Press. Elster, Jon. 2007. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences. Cambridge: Cambridge University Press. Elster, Jon, Claus Offe, and Ulrich K. Preuß. 1998. Institutional Design in Post Communist Societies: Rebuilding the Ship at Sea. Cambridge: Cambridge University Press. Grimm, Dieter. 2004. “Integration durch Verfassung.” Leviathan 32: 448 463. Habermas, Jürgen. 1992. Staatsbürgerschaft und nationale Identität. In Faktizität und Geltung. Frankfurt: Suhrkamp. Hayek, Friedrich August von. 1978. The Constitution of Liberty. Chicago: Chicago University Press. Holmes, Stephen. 1993. “Precommitments and the Paradox of Democracy,” In Constitutionalism and Democracy, edited by Jon Elster and Rune Slagstadt. Cambridge: Cambridge University Press, 195 240. Jowitt, Ken. 1992. New World Disorder: The Leninist Extinction. Berkeley: University of California Press. Levinson, Sanford. 2003. “Precommitment and Postcommitment: The Ban on Torture in the Wake of September 11.” Texas Law Review 81: 213 253. Lewandowski, Joseph. 2007. “Boxing: The Sweet Science of Constraints.” Journal of the Philosophy of Sport 34: 26 38. Loewenstein, Karl. 1937. “Militant Democracy and Fundamental Rights.” The American Political Science Review 31, no. 3: 417 432. Offe, Claus. 1991. “Capitalism by Democratic Design? Democratic Theory Facing the Triple Transition in East Central Europe.” Social Research 58, no. 4: 865 892. Offe, Claus. 2000. “East European Exceptionalism as a Challenge to Democratization. Cultural Aspects of the Consolidation after State Socialism: A Note on the Peculiarities of Postcommunist Transformation.” In The Challenges of Theories on Democracy, edited by Stein Ugelvik Larsen. New York: Publisher. Posner, Richard A. 2006. Not a Suicide Pact: The Constitution in a Time of National Emergency. New York: Oxford University Press. Preuß, Ulrich K. 1995. “Patterns of Constitutional Evolution and Change in Eastern Europe.” In Constitutional Policy and Change in Europe, edited by Joachim Jens Hesse and Nevil Johnson. Oxford: Clarendon Press. Schneider, Carsten Q., and Philippe C. Schmitter. 2004. “Liberalization, Transition and Consolidation: Measuring the Components of Democratization.” Democratization 11, no. 5: 59 90. Sternberger, Dolf. 1990. Verfassungspatriotismus. Frankfurt: Suhrkamp. Sunstein, Cass R. 1991. “Constitutionalism, Prosperity, Democracy: Transition in Eastern Europe.” Constitutional Political Economy 2, no. 3: 371 394. Weber, Max. 1985. “Die Objektivität‘ sozialwissenschaftlicher und sozialpolitischer Erkenntnis.” In Weber, Max: Gesammelte Aufsätze zur Wissenschaftslehre, edited by Johannes von Winckelmann, 6. Auflage, 146 214. Weber, Max. 2004. The Essential Weber: A Reader, edited by Sam Whimster. London: Routledge.

9 Enfranchisement and Constitution Making Claudio López Guerra*

1. introduction The Nebraska Constitutional Convention of 1919–1920 unanimously proposed to amend the state constitution to give women the right to vote. But whether women could be part of “the people” for purposes of ratifying the new document was a matter of great controversy at the convention. The question was posed as follows: “Can they vote on their own enfranchisement?”1 Women were not yet voters, so what could have grounded their right to participate in the referendum? Conversely, had they been voters and the new constitution proposed their disfranchisement, could they have been excluded from the referendum? This chapter addresses the general form of this problem: What is the proper electorate to decide on the composition of the electorate? To clarify the content and practical significance of this question, let me begin with a note on the current disregard for institutional matters among political theorists, a trend that contrasts with an important tradition of political thought, running from John Stuart Mill to Jon Elster. Democratic theory today is largely principle-oriented and abstract rather than institution-centered and concrete. Despite their significance, contemporary democratic theorists have largely disregarded specific questions of institutional design such as the rules affecting the party system, the financing of electoral campaigns, the possibility of reelection, and so on. Not surprisingly they have also disregarded, to an even greater extent, the further practical question of the appropriate rules for making these institutional choices. What decision procedure should regulate the choice of ordinary political procedures? Jon Elster’s work on constitution making is a landmark contribution to this subject. It casts *

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For useful comments on earlier versions of this essay, I am grateful to Andrea Pozas Loyo, Cristian Puga, Paulina Ochoa Espejo, Melissa Schwartzberg, the reviewers for the press, and the partic ipants at the Politica y Gobierno seminar at CIDE on March 23, 2011. Proceedings of the Nebraska Constitutional Convention 1919 1920, vol. 2, 1417.

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light on two central questions about the process for deciding on constitutional basics, namely, the question of who should decide and the question of how the process should be conducted. As for the first, Elster makes a case for constitutional conventions – bodies appointed for the sole purpose of drafting a constitution – as opposed to constituent legislatures, for example. Regarding the second matter, he proposes several institutional measures to reduce the prevalence of self-interest and promote impartial deliberations during the constitution-making process. The who question requires a relevant distinction. On one understanding, it refers to the unit that should decide. For instance, it could be the legislature, the electorate, a constitutional assembly, and so on. Indeed, this is the who issue that Elster examines. Dennis Thompson has recently addressed the same matter in relation to a specific subset of institutional problems, namely, those related to the electoral system in representative governments.2 He is concerned with the problem of who should choose the rules that govern elections, where the options include units such as the citizenry, the judiciary, elected representatives, et cetera. Similarly, Thomas Pogge has discussed this problem in the context of choosing supranational institutions. He criticizes the fact that a “small politico-bureaucratic elite,” rather than the citizens, has been in charge of the design of the European Union.3 On a different understanding, the who question is about the proper membership of the unit responsible for an institutional choice. Once it has been settled that a special convention, for instance, should craft a constitution, the question arises of who should be a member of the convention. This is the kind of who problem that I discuss in this chapter. I am interested in the question of who, if “the public” should have the last word, should be considered to be a member of this unit. But I am not interested in the popular sanction of any constitutional, supranational, or electoral matter, but one in particular – the choice of the electorate itself. Thus my question is “Who should vote on who should vote?” I shall refer to this as the problem of second-order enfranchisement. Why is this a special problem? Isn’t it subsumed by the question of who should be allowed to participate in any constitutional referendum? First, even if we assume that all constitutional referenda require the same set of voters, it is not obvious that the extent of the franchise (like other electoral questions) is a constitutional matter. Take, for instance, the case of Denmark, where the voting age is settled by statute. The age requirement to participate in the referendum on the 1953 constitution was 25 years. Yet a simultaneous referendum was held on the voting age (there were two options, 23 or 21 years) and the electorate was composed of all persons over 21 years: they voted on their own enfranchisement, although the option that received the most votes was 23 years. Second, even if the right to vote were considered to be a constitutional matter, it is not obvious that all constitutional matters have to be decided by the same electorate. On a certain normative approach, one that does not assume that “the 2 3

Thompson, Just Elections. Pogge, “Creating Supra National Institutions Democratically, 163.

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people” has a basic right to decide these matters, we would ideally establish a separate process to decide on the different constitutional questions. This is because the nature, complexity, and importance of constitutional articles are not the same. From this point of view, every constitutional matter is special, potentially requiring a specific electorate. Of course, there may be good reasons in practice to establish a single electorate when an entire constitution or multiple amendments are at stake. But these reasons do not always apply, since constitutional decisions are sometimes made through an isolated amendment process. Finally, the problem of second-order enfranchisement seems to be special even if we assume that all constitutional measures have to be ultimately approved by a single set of persons, “the people.” If one holds the view that “the people” have a basic right to decide such matters, the problem of second-order enfranchisement could potentially (not necessarily) instantiate a special logical problem. This is the problem of circularity: the group of persons that should be allowed to vote for rulers is taken to be the answer to the question of who should vote on who should vote for rulers, but to know who should be allowed to vote for rulers we need a decision by the group that should vote on who should vote. In this account, the right to vote for rulers and the right to decide on who should vote for rulers belong to the same set of persons. The problem is that in order to know who they are, we need a process that is circularly locked: the decision is to be made by the decision maker that is the very object of the decision. The purpose of this chapter is to defend a certain normative approach to the question of second-order enfranchisement and to institutional design more generally. This is a modest task. I do not intend to provide a definitive answer to the problem of second-order voting rights or to propose a recipe to arrive at the correct solution in any given occasion. I have divided the subsequent discussion in two parts. First, in section 2, I present a typology of cases of the problem of second-order enfranchisement and examine some constitutional conventions where the matter was discussed. My purpose is to illustrate the significance of the question and to identify some of the normative factors that have been salient when real agents have faced the problem in practice. Then, in section 3, I provide more refined normative analysis. I identify four positions regarding the problem of second-order enfranchisement and discuss their merits.

2. second-order enfranchisement: typology and cases The specific nature and relevance of some normative problems is best captured by real-life cases rather than fancy lucubrations. Jon Elster’s normative reflections on local and transitional justice, democratic deliberation, and institutional design in general are a model of political theory grounded in, and inspired by, historical experience. In this section I follow his lead. The purest instance of the problem of second-order enfranchisement would be an isolated referendum on the right to vote. In postwar Denmark this has

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occurred on five different occasions (regarding the voting age). But this is certainly a rare event. In fact, I know of no other such cases at the national level. The closest instance would be the popular ratification of a constitution in parts rather than in toto, where one of the provisions to be voted on refers to the franchise. This allows for the possibility of having a different electorate to vote on the franchise clause than the electorate that would vote on the other provisions. As I have defined it, the problem of second-order enfranchisement refers specifically to the choice of the rules for being allowed to vote for representatives, not the choice of the constitution as a whole. Thus, the ratification of the constitution of a representative system as a whole is not strictly a pure instance of the problem of second-order enfranchisement. With this caveat in mind, in this section I shall examine some cases of debates on the proper electorate to ratify the constitution from the point of view that one of the constitutional issues to be voted on is the composition of the electorate. It is worth noting that this is the point of view that dominated the debates on the referendum electorate at many constitutional conventions. The issue was whether a certain person should be allowed to vote in the referendum given his or her status as a former or prospective voter in regular elections. Decisions about who should vote on a constitutional amendment (specifically an amendment on the right to vote) are normally made by a constituent convention or the legislature. By “decision” I mean exactly that – an agent making a determination in a specific case. There are four main legal situations in which those decisions take place: there is no law prescribing a second-order electorate; the law is ambiguous (e.g., it merely requires that “the people” should decide); the law authorizes the legislature or the convention to make a decision; or the law is deliberately contravened. The typology I present in this section assumes that the decision is made by a constitutional convention. This is not only the most common occurrence, but it is also interesting in a way that the decision by the legislature is not. Constitutional conventions often feel bound to extend the referendum franchise to prospective electors. Legislatures lack a similarly clear prospective electorate as reference. To elaborate on this, consider that there are two general ways of submitting an issue to the people for decision. One is to formulate a neutral question. Call it a “plebiscite.” An example would be: “Should noncitizen residents have the right to vote in national elections?” In these cases, the agent that submits the question does not take a stance on the matter. Some problems can be so disruptive that constitution makers try to circumvent them. One method is precisely to submit the matter to the people in a neutral way. In the recent constitution-making process in Bolivia, for instance, the delegates agreed that the latifundio – property rights over vast areas of unused land – should be prohibited. However, they strongly disagreed about how many hectares should define a latifundio. The solution was to hold a specific plebiscite on this matter as part of the ratification process, letting the people choose between a limit of 5,000 or 10,000 hectares. Another way of submitting a question to the people is in the form of a specific proposal that

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would be approved or rejected, as in most cases of constitutional ratification. Call it a “referendum.” Compared to the plebiscite, the distinctive feature of a referendum is that those who submit it take sides on the substantive issue to be decided. In a referendum, what the people confront is a recommendation, not a neutral question. For instance, the following is submitted for approval or rejection: “Noncitizen residents should not be denied the right to vote in national elections.” The designer of such a scheme has endorsed a solution to the first-order issue of whether noncitizen residents should be allowed to vote. Now, the difference between a referendum and a plebiscite thus conceived highlights the difference between a legislature deciding on the electorate for the appointment of delegates and a constitutional convention deciding on the electorate for a constitutional referendum. Since the referendum involves recommending a certain distribution of the franchise for the future, a consideration that often arises in debates about who should vote in the referendum is that of forward-looking congruence. This refers to whether the enfranchisement status of a certain group for purposes of ratifying the constitution matches its status for purposes of voting for representatives under the proposed constitution. In addition, constitution makers have paid attention to backward-looking congruence: to give a group of persons a referendum status different than their former or current status in regular elections has generally been considered problematic. Thus there are four possible cases: C1 – Backward- and forward-looking congruence C2 – Backward- and forward-looking incongruence C3 – Backward-looking congruence (forward-looking incongruence) C4 – Forward-looking congruence (backward-looking incongruence) Each of these cases can take one of two forms, depending on whether the exclusion or inclusion of a group is at stake. For instance, the exclusion of a currently enfranchised group from the referendum, and the inclusion of a disenfranchised group, are the two variations of C3. In the remainder of this section, I will discuss some examples of variations of the last case, C4, taken from the local constitutional history of the United States. A. Forward-Looking Exclusionary Congruence: Tennessee Blacks, 1834 Contrary to a widespread opinion, the evolution of voting rights in the United States was not linear, namely, from a limited franchise to universal suffrage.4 Some requirements for voting, such as the possession of property, eroded in most states in the first half of the nineteenth century. But other requirements that were not in place early in the republic – for instance, women and blacks were allowed to vote in some places – started to appear. Tennessee is an example of both

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Keyssar, The Right to Vote.

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trends: property requirements were abolished under the Constitution of 1834, but blacks, who were allowed to vote under the former Constitution of 1796, became at the same time disfranchised. Alas, blacks suffered a further injustice: second-order disfranchisement. According to the Constitution of 1834, “the electors that chose the general assembly” had to be consulted for the summoning of a constitutional convention, and had the right to vote for delegates. Thus blacks were allowed to participate at these early stages of the constitution-making process. However, the convention not only proposed a constitution that denied blacks the right to vote for representatives, but also decided to exclude them from the ratification process. Since blacks had participated in the election of these delegates, the agents were deposing the principals. The first article of the ordinance that accompanied the new constitution established the following regarding its adoption or rejection: “no person shall be deemed a qualified voter in said election, except such as are included within the provisions of the first section of the fourth article of this amended Constitution.”5 Not the current constitution, but one that had yet to be approved. Those who were prospectively enfranchised thus became the voters to ratify the constitution. However, strictly speaking, this was not a violation of current laws or an invalid application of laws that did not exist. Neither the Constitution of 1796 nor the act that provided for the calling of a convention required a popular referendum on the new constitution, so no provisions were in place regarding the electorate entitled to ratify amendments. In this context, the reference to the new constitution for purposes of defining the electorate that would participate in the ratification process was only that – a reference, not the application of a law that had yet to be properly enacted. It is unfortunate that there are no records of the specific debates. But we do know that there was some disagreement on the matter. Early in the convention, Mr. Porter submitted a resolution stating, contrary to what was eventually adopted, that “each qualified voter under the present Constitution, shall vote for or against the adoption of the revised Constitution.” To the credit of those who suggested the prospective electorate to approve or reject the new constitution, it could be said that the point was to give the referendum franchise to all those who were excluded by the current constitution for lack of sufficient property (as I mentioned, the new constitution dropped property qualifications). Note, however, that the convention could have achieved both: retrospective congruence regarding blacks, and prospective congruence regarding the poor. According to Jameson, there are at least three cases of constitutional conventions enfranchising both all those qualified under the old and the amended constitution for purposes of ratification: Lousiana 1845 and 1852; Texas 1845; and Virginia 1859.6 The final schedule article of the Lousiana State Constitution of 5 6

Journal of the Convention of the State of Tennessee, 407 408. Jameson, A Treatise on Constitutional Conventions, 517.

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1845, for instance, instructs election officials to conduct a process “for the purpose of taking the sense of the good people of this State in regard to the adoption or rejection of this Constitution; and it shall be the duty of said officers to receive the votes of all persons entitled to vote under the old Constitution and under this Constitution” (Title X, Ordinance). B. Forward-Looking Inclusive Congruence: Nebraska Women (1920) and Virginia Non-Freeholders (1829) To insist, the ratification of the Tennessee Constitution of 1834 not only illustrates prospective exclusionary congruence, it is also an instance of prospective inclusive congruence because the poor, who were disfranchised by the constitution in place, were nevertheless allowed to vote in the ratification of the new constitution, which established their enfranchisement. Here I want to discuss two additional cases: the enfranchisement of women in Nebraska for purposes of voting, separately, on thirty-five amendments to the state constitution in 1920, and the ratification of the Constitution of the State of Virginia of 1830, which abolished a few property qualifications for voting. These are by far the most interesting cases for our purposes. Unlike most other cases, we have records of the very interesting debates on the subject. Nebraska Women (1920) The Nineteenth Amendment to the United States Constitution was on its way by the time the Nebraska convention assembled in December 1919.7 In fact, Nebraska had already ratified the Amendment in August, and a local statute had already given women limited voting rights (for municipal and presidential elections). Thus, it was clear from the outset that the new constitution would establish full voting rights for women. As one delegate put it during the debates, the full enfranchisement of women was “just as certain to happen as the rising of the sun tomorrow morning.”8 But whether women should participate in the ratification of the amendments became a very contentious matter. The debates at the convention were quite interesting. Since most delegates supported the first-order enfranchisement of women, and since there was no reason at all to believe that women would vote differently on the amendments compared to men (in which case there could have been strategic reasons to exclude them), the debate was truly about the legal and philosophical foundations of the right to vote at the second-order level. In other words, those who were against allowing women to participate in the ratification process were not expressing a prejudice against the political involvement of women, nor were 7

8

For an overview of the provisions and the amendment process, see Dorsey, “The Nebraska Constitutional Convention,” 223 228; and Sheldon, “The Nebraska Constitutional Convention, 1919 1920.” Proceedings of the Nebraska Constitutional Convention 1919 1920, vol. 1, 506.

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they acting strategically. Their main argument was that the old constitution, which was still in force, did not authorize women to vote on constitutional amendments. From a legal perspective, this seems to have been the correct position. Article XV of that document established the following: “No amendment or change of this constitution, agreed upon by [a constitutional] convention, shall take effect until the same has been submitted to the electors of the state, and adopted by a majority of those voting for or against the same.” The question was whether women could be counted as “electors of the state.” Many influential lawyers argued (rightly, in my view) that they did not, since it is clear elsewhere in Article XV that qualified electors were taken to be all persons entitled to vote in state legislative elections. Only such persons were eligible to approve or reject proposals to set up a constitutional convention, and to vote in the ratification. Women were legally excluded from these processes. In response, advocates of allowing women to ratify the amendments tried several lines of argument. For instance, they claimed that women were already electors of the state since a statute had enfranchised them for municipal and presidential elections. But this did not answer the point that women had to be qualified electors under the terms specified in Article XV of the constitution. Another strategy was to suggest that women were disqualified only on account of the article of schedule in the constitution, which was transitory by definition and thus the convention was not bound by it. The problem, again, was that this argument ignored Article XV, which was still in effect. (It would have been more promising to argue that Article XV did not require amendments to be submitted only to the “electors of the state,” but to others as well.) Another line of argument appealed to the principle of popular sovereignty. Mr. Spillman (who repeatedly cited R. S. Hoar’s influential work on constitutional conventions)9 suggested that in constitution-making settings the people were the ultimate authority, and they could do – through their representatives at the convention – as they pleased: “We are not bound by anything even in this present Constitution when it comes to writing a new one . . . The people are doing it, and there is just one power stronger than the Constitution itself and that is the people. They created it and they can replace it as they see fit, and we can say in that schedule who can vote on the ratification or rejection of this Constitution.”10 In the end, the convention reached a compromise and adopted a peculiar process. Anticipating a legal battle that could have forced a new ratification vote, the convention did allow women to vote on the amendments – including the one that established their future status as electors – but their ballots were deposited in separate boxes just in case they were invalidated.11 But the process was not 9 10 11

Hoar, Constitutional Conventions. Proceedings of the Nebraska Constitutional Convention, vol. 1, 842. Ibid., vol. 2, 1430.

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challenged. There was little to fight about from the point of view of the outcomes. Men and women voted alike on all amendments but one – whether the number of senators should be increased from 35 to 50. The votes of women made the difference in favor of the amendment. Virginia Non-Freeholders (1829) Under the first constitution of Virginia (1776), the franchise remained restricted to white male freeholders, which meant that about 70 percent of the freemen were not allowed to vote.12 The franchise became an important issue in the constitutional convention of 1829–1830.13 The results, however, disappointed the advocates of a more inclusive polity. The new suffrage article was very convoluted. At best, the new property qualifications enfranchised half of the free white male population over twenty-one years of age.14 But the first-order franchise was not the only type of suffrage question to be heatedly debated. Whether only freeholders or also those who would be enfranchised under the new constitution should vote in the ratification became a divisive issue. Unlike the debate in the Nebraska Convention of 1919–1920, the debates in Virginia more openly involved moral and political, rather than legal, argument. It was clear that the legislature lacked constitutional authorization to call for a convention in the first place, let alone decide (as it did) that the delegates were free to determine the proper electorate to ratify or reject the new document. However, the legislature submitted the question of calling a convention to the qualified voters of the state, and it passed a second act establishing the terms for sending delegates and instructing the convention to submit the new constitution to the prospective electorate – unless the convention said otherwise. Was the authority to settle the question of second-order suffrage legitimately given to the convention? Those who answered in the affirmative claimed that, in voting for delegates, the electors implicitly sanctioned the (originally illegitimate) act whereby the convention acquired the right to settle the problem of secondorder enfranchisement. As Mr. Cooke put it: “Here was the case of an estate deeded away under mere colour of title; but that deed afterwards ratified by the true and acknowledged owner.”15 A further idea was that, once dully authorized to call a convention, the legislature acted as the agents of electors in that regard, and whatever they did was legitimate. Mr. Thompson made the point very clearly: If it were an usurpation against whom and by whom was it committed? Against the freeholders by the freeholders themselves for, what they did by their agents, the members of the Legislature, they did by themselves and this usurpation thus committed 12 13

14 15

Chandler, The History of Suffrage in Virginia, 22. According to Chandler, “next to representation, suffrage was the most important subject of discussion” (The History of Suffrage in Virginia, 31). Chandler, The History of Suffrage in Virginia, 40. Proceedings and Debates of the Virginia State Convention of 1829 1830, 869.

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by themselves against themselves, these same freeholders ratified, first, by their acquies cence, and secondly, by the act of electing members to this Convention, and all this, so far as I have heard, without a murmur or complaint against this act or any part of it.16

These arguments, however, did not persuade everyone. Those opposed to broadening the ratification franchise made at least four different arguments. One was that voting for delegates did not amount to giving the legislature carte blanche on fundamental matters such as the allocation of the second-order franchise. If that had been correct, freeholders could have been legitimately deprived of the right to vote on the constitution. To say that freeholders consented to that possibility was absurd. According to Mr. Nicholas: The law submitting the question to the freeholders, only required them to say “Convention or No Convention.” Their decision in favour of a Convention, did not waive their right to pronounce on the form of government, which might be tendered for their acceptance, nor amount to a sanction of all the provisions which might be incorpo rated into an act calling the Convention.17

Mr. Nicholas also made the following argument. The fact that the legislature submitted the question of calling a convention only to freeholders implied that these were regarded by that body as the ultimate authority to decide on such fundamental matters: “Every reason which could be urged, for referring the question of calling a Convention to the freeholders, applies with equal force to shew, that the ratification or rejection should also be submitted to them.”18 Thus, the legislature’s actions undermined its authority to grant the convention the power to settle the problem of second-order enfranchisement. The third argument appealed to the alleged responsibility that delegates had toward those who appointed them. Mr. Randolph claimed that it would be wrong to “betray those freeholders – to disavow them – to disfranchise our constituents.” Under this conception of representation, elected officials must only promote the interests of those who appointed them. This line of reasoning suggests that it would be wrong for elected representatives to enact laws to promote the interest of, say, children, unless voters demanded it. Mr. Randolph concluded: “Sir, if the freeholders choose to say, we approve of what you propose, there is an end – nothing more is to be said. But, nobody else has any right to speak in the matter. We are their agents, acting under their sanction. . . . Sir, we are the trustees for the freeholders: and we have no right to betray them. We act by their authority alone.”19 Finally, it was deemed unacceptable for the convention to conclusively decide the question of second-order enfranchisement, or any other constitutional question for that matter. They could only propose changes to the 16 17 18 19

Proceedings and Debates of the Virginia State Convention of 1829 1830, 887. Ibid., 891. Ibid. Ibid., 867.

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constitution, not actually consummate them. Again Mr. Randolph: “Sir, we have been called as Counsel to the people – as State Physicians – to propose remedies for the State’s diseases – not to pass any act that shall have in itself any binding force. We are here as humble advisers and proposers to the people.”20 Many constitutions contain transitory articles of schedule. It is hard to argue that conventions exceed their legitimate powers by passing such binding articles. The question is whether deciding in a binding way the composition of the second-order electorate (as opposed to similarly deciding, say, the time and fashion to conduct the referendum) is beyond a convention’s powers. Mr. Randolph elaborated: “Sir, if we have the power to decree with respect to the Right of [second-order] Suffrage – why not with respect to the apportionment of representation? I would thank any gentleman to take me out of that difficulty – or himself rather. I ask again, if we may decree with respect to this question, why not with respect to all questions?”21 This debate proceeded for the most part under the critical premise that freeholders had final authority on the question of second-order enfranchisement. But at least on one occasion this basic premise was challenged. Mr. Thompson argued that “according to the theory and principles of free government and the equal rights of man, the question of ratification or rejection should be submitted to the whole community – freeholder and non-freeholder, whether entitled or not to the Right of Suffrage under the Constitution submitted, or the existing one.”22 Indeed, what he questioned was the right of freeholders to have a final say on these matters in the first place: If the freeholders, without consulting the non free holders, arrogate to themselves the exclusive right to govern this land, whether they be a majority or not, why may not a part of them with equal propriety assume that right in exclusion of the rest? why may not the large landed proprietors deposing the petty freeholders, say, that they alone are the rightful sovereigns?23

Mr. Thompson’s intervention was special in the sense that it directly addressed the problem of second-order enfranchisement, regardless of the convention’s authority to decide on the matter. Indeed, an argument to show that freeholders had authorized the convention to choose the referendum electorate is not an argument for the view that the prospective body of electors should be the one to vote on the amendments. It would not have been inconsistent to claim that freeholders had duly authorized the convention to do as they pleased, and at the same time claim, substantively, that only freeholders should participate in the ratification. No one seems to have adopted that position, though.

20 21 22 23

Proceedings and Debates of the Virginia State Convention of 1829 1830, 868. Ibid., 889. Ibid., 886. Ibid.

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3. the normative theory of second-order enfranchisement These exchanges provide useful keys to organize the normative discussion of the problem of second-order enfranchisement. I shall not discuss here obvious factors such as the importance of respecting the legality of an amendment process. Instead, I shall focus on two analytical dimensions that are particularly relevant to our topic. The first, call it the question of sameness, refers to the relationship between the right to choose rulers and the right to choose the basic institutions of a representative system, including the allocation of the right to vote. There are two basic positions. One is that the proper allocation of firstorder voting rights and that of second-order voting rights mirror each other. The two electorates should be the same. The other position, of course, is that the two groups need not converge: in determining who should vote in the ratification, a convention is not required to include all past or future electors (as Mr. Thompson suggested in the Virginia debates). The second dimension refers to the grounds for evaluating political institutions. Here the alternatives are also primarily two. First, there is what I shall call the “popular sovereignty” approach to institutional morality, which was salient in the Virginia and Nebraska debates. According to this view, “the people” have a basic right to choose the terms of their association, including the right to determine who should be an elector in representative systems. This right is thought to be basic in the sense that it is not derived from more important rights or justified on account of protecting certain interests. It is a natural entitlement regardless of whether it is beneficial or burdensome as such, valuable or harmful in its effects. This has the same status as the doctrine of the divine right of kings. The people are the original and rightful recipients of political power, in particular constituent power. From this perspective, the problem of second-order enfranchisement is the problem of identifying the sovereign, “the people.” The second account of the grounds for evaluating political systems is what I call the “justifiability” approach. It refers to the substantive merits of an institution according to independent normative standards. The overall value of an institution in this regard is given by two different considerations: procedural and instrumental. Procedural factors refer to the morally relevant ways of treating persons that institutions directly establish or bring about, regardless of the quality of the outcomes and other operational effects. Instrumental factors, by contrast, comprise the morally relevant ways in which people are treated as a result of the functioning of a procedure, that is, the quality of its decisions and other effects. By crossing these two dichotomous dimensions – the question of sameness and the evaluation approach – we obtain four positions or theses regarding the problem of second-order enfranchisement: (a) the sovereignty and sameness thesis (SST), (b) the sovereignty and divergence thesis (SDT), (c) the justifiability and sameness thesis (JST), and the justifiability and divergence thesis (JDT). In

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this section I argue for JDT: the view that the two electorates (first- and secondorder) need not converge, and that we should follow the justifiability approach to institutional evaluation and design. To this end, I shall begin with a critique of the exact opposite view, SST, which seems to have been recently advanced by an influential democratic theorist, Dennis Thompson. In Thompson’s account, SST follows from an a fortiori argument: if a group of persons have the right to choose their rulers, then, with greater reason, they have the right to choose the institutions that regulate the election of rulers – including the allocation of the franchise. The second-order electorate should mirror the first-order electorate. In addition to the idea that people at large should have the right to vote for representatives, the argument for SST includes three other premises. One is that electoral systems matter. Different rules are likely to produce different outcomes. The structure of the party system, the translation of votes into seats, the number of votes required for victory, and many other variables have important implications. These rules in the end affect the options appearing on the ballot, and hence the very right of citizens to choose. Another premise is that citizens cannot properly exercise their right to choose electoral institutions by leaving the matter to their representatives. The reason is that a body is likely to act in self-serving ways if it can control its own membership. In this situation, it is the rulers who would be selecting the voters, not the other way around. The last premise is that citizens have, or could obtain through feasible means, the necessary competence to choose among alternative electoral institutions. Thus, “the majority” (a term Thompson uses as a synonym of “the citizens” or “the sovereign”) should alone decide on all questions of electoral justice. This is the principle of popular sovereignty. And who are these persons? In the account under consideration, the answer is: those who have the right to vote for representatives. Now, it is not clear at first that the right to choose an electoral system includes the right to define or redefine who should be an elector. Were this not the case, the view under examination could not be considered (among other things) as a response to the problem of second-order enfranchisement. But Thompson leaves little room for doubt: “The principle [of popular sovereignty] also implies that a majority should decide what counts as a majority for this purpose, and at what point to call a halt to the otherwise indefinite regress of majorities’ deciding what a majority is.”24 Popular sovereignty, to be sure, is not the only principle at work in the argument for SST. It is qualified by two other principles and an internal condition: the principles of equal respect and liberty, and the demands on intergenerational sovereignty. The two principles clearly forbid certain kinds of limitations on the right to vote. It would be unacceptable to deny it to some persons for no other reason than, for instance, their race or gender. In addition, the sovereignty that a majority exercises today should respect the sovereignty of 24

Thompson, Just Elections, 124.

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future generations: “a current majority should leave open the possibility of changes to other forms, including those as the adoption of a different electoral system, that would alter the definition of the majority itself.”25 Thus conditioned, the group of persons that should vote for rulers should be the ones to vote for the electoral system, including the allocation of the franchise. The two electorates should be the same, and the guiding principle is popular sovereignty. This account faces a big difficulty. The previous argument for SST avoids the issue of infinite regress: if we understand “the people” as those who have been duly appointed to constitute this group, those who do the appointing must be duly appointed in turn, and those who appoint those who appoint must be duly appointed, and so on. Thompson proposes a substantive solution at the secondorder level, so the problem of infinite regress does not apply. The solution is that those who have the right to vote for rulers should also decide on all electoral matters. But this solution comes at the cost of falling prey to another common danger – that of circularity. Indeed, the group to decide who should be in the electorate is the very electorate that is yet to be chosen. In other words, the outcome of the decision is required to make the decision in the first place, which creates a vicious circle. To the question “who should decide who the voters are?” the answer here is “the voters.” This is to put the cart before the horse. Another way of looking at the problem is that the argument for SST includes incompatible premises. On the one hand, it is assumed that certain persons ought to be allowed to vote in elections. Yet on the other hand these persons also have the right to decide on electoral institutions, including the rules that allocate the right to vote in elections. There are two basic paths to rescue the argument from circularity: by recasting it as an argument that is not about second-order enfranchisement, and by abandoning the popular sovereignty approach. I shall discuss each in turn. As for the first, it involves eliminating voting qualifications from the list of institutions that the voters can decide. Consider two ways of doing this. First, it could be argued that there is only one acceptable allocation of the franchise according to the principles of freedom and equality. Thus voting qualifications would not be among the features of an electoral system that the voters have a right to determine. At times Thompson seems to suggest that this is actually his position. In that case, he would only be guilty of failing to explain properly the idea that a majority has the right to decide what counts as a majority. The argument would no longer be about second-order enfranchisement. It would only be an argument about who should decide electoral institutions other than the allocation of the right to vote. But this response would be unsatisfactory. It would significantly undermine the general argument that electors should choose other important electoral institutions. First, it is implausible that there is a uniquely just allocation of the franchise and not also a uniquely just design of other electoral institutions. 25

Thompson, “Democracy in Time: Popular Sovereignty and Temporal Representation,” 250.

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Second, the idea that there is only one allocation of the franchise compatible with the values of freedom and equality (or even a group of people that ought to be enfranchised for any allocation to be just) is problematic to begin with. As I mentioned earlier, there are certain forms of political exclusion that are clearly indefensible from the perspective of freedom and equal concern and respect. But it is false that anything short of universal (sane adult) suffrage would be offensive. Consider what I have called “the enfranchisement lottery,” a system where the electorate would be composed of a relatively small number of persons randomly selected from the population prior to every election.26 If it were argued that such a system would be beyond the majority’s legitimate pool of institutional options to choose from, we would not be taking seriously the idea of popular sovereignty. Why can “the people” choose an indirect form of democracy – which implies limiting the opportunities for political participation – and not also restrict the elective franchise in certain ways? Thus, it seems that in the end the argument is either circular or incompatible with the idea of popular sovereignty. The other way in which voting qualifications could be placed beyond the voter’s control is by suggesting that there is a group of persons with the right to decide who should vote for representatives, and that it can be identified without reference to the first-order electorate. Unlike the previous case, here it is an agent – as opposed to certain principles – that produces the first-order electorate. It would be a scheme of nested sovereignty: the second-order electorate would be sovereign over the constitution of the first-order electorate, and the latter would be sovereign over the other elements of the electoral system. Thus, Thompson’s argument would only apply to institutional matters other than the allocation of the franchise. One obvious problem with this line of defense, however, is that it would be difficult to explain why the second-order electorate is not also sovereign with respect to all electoral matters. Since we are dealing here with the choice of basic institutional rules that seem to be of the same kind, it is hard to think of a good justification for a system of multiple sovereignties at that level. If it were suggested that the second-order electorate should then be sovereign over everything, the original SST thesis would have been turned into something else, indeed SDT: the (popular) sovereignty and divergence thesis. The second main path to avoid circularity, as I mentioned, is to abandon the idea of popular sovereignty. This can be done in a way that retains much of Thompson’s original argument. The idea begins with the assumption that, independently of who decides, there exist independent standards to evaluate alternative allocations of the franchise. Then we select the second-order electorate with a view to get the first-order electorate right. The logic of enfranchising at the second-order level those who should be enfranchised at the first order level is only that they are more likely than any other alternative to get it right: that is, to enfranchise themselves. There is no circularity: in order to know who should 26

López Guerra, “The Enfranchisement Lottery.”

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vote for representatives, who would in turn constitute the second-order electorate, we do not need to know what the second-order electorate decides. Instead, we simply say: X should have the right to vote for representatives, and in order to improve the chances of this actually happening, we enfranchise X at the secondorder level. In short, the fact that they decide is not what makes the decision right or wrong. And therefore popular sovereignty is no longer part of the argument. Indeed, it is important to recall that, as I described it, popular sovereignty is the view that what should be done is whatever “the people” want, and for no other reason than they want it. Not only it is their right to decide on the matter, but also the only evaluative criterion is the extent to which it is their decision. As Thompson himself put it, within the limits established by freedom, equality, and respect for the sovereignty of future peoples, the will of the majority “reigns supreme.”27 Thus modifying the argument produces JST: the justifiability and sameness thesis. Here I want to argue for an alternative view, the justifiability and divergence thesis (JDT). Let me begin by expanding the argument against the sovereignty approach to institutional morality. The logical problems of circularity and infinite regress previously discussed arise only when the identity of “the people” is determined procedurally; that is, when the group is supposed to constitute itself or when it is the result of the decision of a group that was properly authorized by a group that was properly authorized – and so on. But, as SDT suggests, it is certainly possible to claim from the outset that there is some group, “the people,” that has the right to choose the political institutions of a polity (including the allocation of the franchise, if a representative system is chosen in the first place). But this view faces other problems, mainly the following two: elusiveness and moral emptiness. These are not problems of logic, but of substance. Let us take them in turn. In the popular sovereignty approach, the search for a morally acceptable answer regarding the basic institutional choices of a polity is nothing but the search for an agent: “the people.” We will know what we ought to do the moment we find the people and ask them. But the people is an elusive entity. Consider how it escaped those who invoked it in the Nebraska Convention as a distinct unit from that of the electors under the constitution still in place. mr. anderson: Who are the people? Do you maintain that, in addition to extending it [the second order franchise] to the citizens of the United States of certain ages, we could say that all the citizens of the United States over the age of eighteen years could vote on this? mr. spillman: Yes, the people through their representatives could provide the electorate. mr. anderson: Then could we limit it at the other end and say citizens of the United States over the age of eighteen, and under the age of twenty nine years shall vote on this? mr. spillman: You would not have the people doing it then, don’t you see? The big thing in this is this question: Are the people doing it?28 27 28

Thompson, Just Elections, 12. Proceedings of the Nebraska Constitutional Convention 1919 1920, vol. 2, 1429.

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Delegates such as Mr. Spillman wanted to have it both ways. On the one hand, they claimed that the convention, since they were the vehicle through which the people were acting, could do as they pleased in defining the second-order electorate. On the other hand, when pressed whether they could appoint children, foreigners, or only themselves as the second-order electorate, they responded in the negative, since then a body other than the people would be deciding the matter. The contradiction was evident, as the opponents pointed out during the debates. The closest that Mr. Spillman came to dissolve this logical tension in his position was by means of vaguely suggesting (after personally corresponding with Hoar on the matter) that the second-order electorate must include all the members of the people but may also include others as long as they were selected by the people – through their delegates at the convention.29 In any case, the important point is that “the people” were nowhere to be found. Whenever a group was mentioned, from aliens to women, they were intuitively accepted or dismissed by appeal to “the principles of representative government.”30 But the question “who are the people?” according to these principles was never answered clearly. This is not to say that we lack interesting theories. Paulina Ochoa-Espejo, for instance, has recently shown that problems such as circularity and infinite regress can be averted by conceiving of “the people” as a process rather than a collection of individuals with a unified will, much like we can distinguish between Congress as an institution and the individual legislators that compose it at a certain time.31 However, when it comes to practical problems of institutional design, we obtain little guidance from the idea of popular sovereignty. The more pressing problem with the popular sovereignty approach is that it lacks ethical foundations. Why should the people decide, in any case? Why is their will morally legitimate? To simply stipulate that it is their natural right to decide on such matters is unsatisfactory. Rights have to be justified by argument. Unfortunately, the situation mirrors that of most theological debates, where the conflict concerns the identity of the divine being and the content of its will, not whether it should be carried out. Much of the recent interest among democratic theorists in the problem of defining or constituting the demos is problematic precisely in this sense. It is often misguided for exactly the same reason that the entire “social choice” literature was misguided, namely, it wrongly presupposed that policies ought to be evaluated by their correspondence to the people’s desires. As Brian Barry put it: “Unfortunately, very little attention is given in this whole literature to the ethical foundations. Why should we drop the earlier idea that policies are to be evaluated by their tendency to promote human welfare, and take up instead the idea that they are to be evaluated by their

29 30 31

Proceedings of the Nebraska Constitutional Convention 1919 1920, vol. 2, 2605. Ibid. Ochoa Espejo, The Time of Popular Sovereignty.

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correspondence with policy preferences?”32 We have to ask the same question in the present context: Why should we evaluate the choice of political institutions by their correspondence with the will of an alleged sovereign rather than by the morally relevant ways in which they treat people? Under the justifiability approach we do not need to know who the people are in order to know what ought to be done regarding the practical problem at hand. It is the other way around: we know who should make a decision – who “the people” are – after evaluating the relative merits of the different procedures in a particular case. This involves looking at the morally relevant ways in which people would be treated as a result of merely adopting a decision-making scheme (its “intrinsic” value) and looking at the quality of the outcomes that such design is likely to produce (its “instrumental” value). I now turn to the second part of the JDT, the rejection of the idea that the firstand second-order electorates ought to be the same. In rejecting sameness, I do not want to defend the view that the two electorates ought to be different. I simply reject the view that the two electorates should necessarily be alike. Sometimes it may be preferable, all things considered, for the second-order electorate to be more inclusive than the first-order electorate. But on occasion we might want the first-order electorate to be the more inclusive one. And, of course, in certain cases the preferred option may be sameness. It will all depend on the significance of various normative considerations in different circumstances. What follows are some examples of these considerations. Some count for greater inclusiveness at the second-order level, others for greater inclusiveness at the first-order level. In the end, the matter should be decided on a case-by-case basis. One reason why divergence may be preferable has to do with the potentially asymmetrical value of the first- and second-order franchises. If the second-order franchise were more valuable, it may be reasonable to defend greater inclusiveness at the second-order level. In most cases, constitution-making moments are politically more charged or delicate than elections. Much is at stake in the adoption of a political system, and the choices are meant to last. Thus, being denied the right to participate in the ratification of constitutional choices (and in the process of selecting delegates to a convention) may be, for some, a greater deprivation than the denial of the right to vote. It was evident that the women of Nebraska would get the right to vote for representatives, but the women wanted to participate in the referendum because it was considered to be “the most important thing to be voted on in this State for the next forty or fifty years.”33 From this perspective, it would have been reasonable for someone to have opposed the firstorder inclusion of women, while defending their second-order inclusion. Conversely, if the first-order franchise were more important, one might conclude in a given case that the first-order electorate should be more inclusive than 32 33

Barry, “Evaluation of Political Systems,” 989. Proceedings of the Nebraska Constitutional Convention 1919 1920, vol. 2, 1416.

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the second-order one. Suppose that the prospectively enfranchised group would vote against their own enfranchisement, and that this vote would be decisive of the outcome (think, for instance, of the opposition of women to their own inclusion in some American states in the nineteenth century). Given the presumed greater significance of the first-order franchise, one could reasonably prefer divergence as in the previous paragraph, but in the opposite direction: the group would be excluded from the referendum to ensure their ordinary enfranchisement. Now consider a different factor that could ground the case for divergence: ensuring the legitimacy (the perception among the relevant parties that they are acceptable) of the constitution-making processes and the resulting regime. There are two conflicting lines of argument on the basis of this consideration. On the one hand, some have argued that the constitution-making electorate may, and perhaps should, be more inclusive than the regular one. Russell Hardin has argued the following: “In constitutional moments the people have a voice – or at least the choices in those moments, whoever makes them, must fit the people’s interests in some strong sense of coordinating them if the choices are to be at all binding.”34 Hardin, a strong critic of fallacies of composition and vacuous appeals to “the people,” is certainly not alluding to an elusive figure in this passage, but to a concrete group of individuals, namely, those who simply happen to face, due to historical accident, a fundamental coordination problem. Jon Elster has explicitly advanced this argument in relation to the manner of electing delegates to constitutional conventions and the inclusiveness of the ratification franchise.35 While majoritarian rather that proportional systems may be more appropriate in the context of electing ordinary officials to ensure effective governance, proportional arrangements might be better in appointing delegates to ensure legitimacy. Similarly, a limited ratification franchise could imperil the viability of the new constitution. On the other hand, ensuring the legitimacy of the constitution-making process may require or permit a less inclusive second-order electorate. Specifically, many who may be included at the first-order level might not be part of the coordination problem that Hardin mentions, and hence their second-order exclusion may be justified. Felons may be one example. Another is those who reside abroad – citizens and noncitizens alike. There are reasons for and against the first-order enfranchisement of these groups. In any case, it seems uncontroversial that they may legitimately be enfranchised if “the people” approve. But who should “the people” be in such cases? One of the strongest reasons against enfranchising these persons at the first-order level becomes even more plausible regarding their potential second-order inclusion. It is the fact that their enfranchisement is not important for the viability of the political order. As they live their lives elsewhere, they are not part of the coordination problem. Nothing 34 35

Hardin, Liberalism, Constitutionalism, and Democracy, 157. Elster, “Legislatures as Constituent Assemblies,” 187.

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changes if they disapprove of the constitution. They are not in a position to endanger whatever arrangement is adopted by those living in the country. International protests would be cute, but ineffective. Or consider the threat that non-resident citizens would stop sending remittances that are all-important for the economy of some countries unless they are enfranchised. The threat is not credible because expatriates do not send remittances out of love for their country of origin but rather to help specific individuals, normally family members. Now imagine that the outcome of a ratification referendum is narrowly determined by the nonresident vote. The conflict between the local political groups would be compounded (unless the second-order enfranchisement of nonresidents had been previously approved by the residents, but this is merely moving up the issue one level). In short, regarding the perceived legitimacy argument, there are reasons for both a more inclusive second-order electorate, and a more inclusive first-order electorate. What would ultimately result cannot be determined in the abstract, but has to be decided on a case-by-case basis. All this undermines, it seems to me, the view that the two electorates ought to be the same.

conclusion The problem of second-order enfranchisement is one among other practical problems (such as the drawing of state boundaries and the selection of immigration policies) where it is unclear “who is the polity that should decide.”36 It may be true that democratic theory, specifically of the sort that appeals to the idea of popular sovereignty as defined here, offers little guidance in these cases. But political theory more broadly understood, with the aid of the lessons taught by history, is indispensable to work out nonarbitrary solutions to these and other problems. References Barry, Brian. 1992. “Evaluation of Political Systems,” In Encyclopedia of Ethics, edited by L. C. Becker and C. B. Becker. New York and London: Garland. Chandler, Julian A. C. 1901. The History of Suffrage in Virginia. Baltimore: Johns Hopkins Press. Dorsey, William C. 1920. “The Nebraska Constitutional Convention,” Constitutional Review 4: 223 228. Elster, Jon. 2006. “Legislatures as Constituent Assemblies.” In The Least Examined Branch: The Role of Legislatures in the Constitutional State, edited by Richard W. Bauman and Tsvi Kahana. New York: Cambridge University Press. Hardin, Russell. 1999. Liberalism, Constitutionalism, and Democracy. Oxford: Oxford University Press.

36

Issacharoff, “Democracy and Collective Decision Making,” 243.

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Hoar, Roger Sherman. 1917. Constitutional Conventions. Boston: Little, Brown and Company. Issacharoff, Samuel. 2008. “Democracy and Collective Decision Making,” International Journal of Constitutional Law 6: 231 266. Jameson, John Alexander. 1887. A Treatise on Constitutional Conventions. Chicago, Callaghan and Company. Journal of the Convention of the State of Tennessee. 1834. Convened for the purpose of revising and amending the constitution thereof. Held in Nashville. Keyssar, Alexander. 2000. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books. López Guerra, Claudio. 2010. “The Enfranchisement Lottery.” Politics, Philosophy & Economics, October 26, doi:10.1177/1470594X10372206. Ochoa Espejo, Paulina. 2011. The Time of Popular Sovereignty. University Park, Pennsylvania: Penn State University Press. Pogge, Thomas. 1997. “Creating Supra National Institutions Democratically,” The Journal of Political Philosophy 5: 163 182. Proceedings and Debates of the Virginia State Convention of 1829 1830. 1830. Richmond: Printed by S. Shepherd & Co., for Ritchie & Cook. Proceedings of the Nebraska Constitutional Convention 1919 1920. 1921(?). Clyde H. Barnard (comp.) Lincoln: Kline. 2 vols. Sheldon, Addison E. 1921. “The Nebraska Constitutional Convention, 1919 1920,” American Political Science Review 15 (3): 391 400. Thompson, Dennis. 2002. Just Elections. Chicago: The University of Chicago Press. Thompson, Dennis. 2005. “Democracy in Time: Popular Sovereignty and Temporal Representation.” Constellations 12, no. 2: 245 261

part v TRANSITIONAL JUSTICE

10 Compensation and Land Restitution in Transitions from War to Peace Pablo Kalmanovitz*

Wars typically cause damages of various kinds and degrees of severity. Lives are lost, bodies and minds are injured, property is destroyed, and people are forced to abandon their personal goods and places of living. More indirectly, war and its aftermath cause suffering from weakened political institutions and a stagnated economy; unemployment is high, life opportunities are limited, and consumption goods are scarce. Over the past two decades, humanitarian and transitional justice discourses have been consolidating around the banner of “undoing” the harmful effects of war, notably in an emerging international legal norm mandating reparation payments for violations of human rights and International Humanitarian Law. An important step in this process took place in 2005 when the UN General Assembly proclaimed and adopted a set of demanding principles and guidelines on the “right to a remedy and reparation.”1 Among other things, the principles stipulate that, “any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case” must be compensated, including lost opportunities and losses of earning potential (§20, emphasis added).2

* Earlier versions of this chapter were presented at the Universidad de los Andes Law School faculty workshop, in Bogotá, and at the 2013 Annual Conference of the International Studies Association in San Francisco. For helpful comments and discussion, I would like to thank Rob Blair, Tom Donahue, Mona Fixdal, Alejandro Gaviria, Bob Goodin, Shmulik Nili, Philip Orchard, James Pattison, Mauricio Rengifo, Yamile Salinas, Ian Shapiro, and Daniel Viehoff. 1 UN General Assembly Resolution 60/147 of December 2005. On the origins and significance of this resolution, see Shelton (2005), and for a detailed presentation of the emerging norm, see United Nations High Commissioner for Human Rights (2008); Leckie and Huggins, Conflict and Housing, Land and Property Rights. 2 Shelton explains that the test of “economically assessable damage” requires “lawyers, econo mists, and judges to devise economic measures of intangible injuries,” and explains that “pain and suffering are now widely viewed as capable of economic assessment [. . .] Hedonic damages,

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Along with the proclamation of this far-reaching right to reparation, the General Assembly declared that states have a duty to “provide reparation to victims for acts or omissions which can be attributed to the state and constitute gross violations of international human rights law or serious violations of international humanitarian law” (§15). Since states are deemed responsible for protecting their citizens’ rights – particularly those to life, bodily integrity, and property – the attribution of omission, and therefore the state’s liability to fund reparations programs, can be quite onerous. While states should in principle find the agents directly responsible for wrongful damages and make them liable to compensate, if this proves impossible or insufficient for reparation purposes, then the state itself is liable, which is to say that taxpayers, possibly future generations of them, must take the burden of repair. Even though the legal force of these guidelines can be contested, they are certainly indicative of a growing expectation among international organizations, foreign donors, and human rights and victims organizations, that reparation programs for war damages be funded and implemented by the state.3 In contexts of very scarce resources, adopting a right to reparations and a corresponding state obligation to repair means that reparation payments should have priority over other policies of postwar reconstruction. Indeed, given that the full cost of reparation programs will often weigh heavily on the finances of war-torn states, public resources will have to be taken away from other valuable forms of public spending, notably institution building, reconstruction of public goods and infrastructure, and securing basic rights for all the population. Since these competing demands on public resources are urgent and valuable, proponents of an obligation in the state to pay reparations should be able to justify the priority of reparations over other valuable expenditures. When thinking about the justification of reparation programs, we need to take the wider perspective of postwar reconstruction and determine how to balance the various competing allocation criteria. Jon Elster has helpfully identified three criteria for the allocation of public resources in postwar reconstruction: entitlements created by past titles or past suffering, which are the basis for reparation claims; present need, which may or may not be directly linked to the violence and destruction caused by war; and economic development, which aims to increase productive outputs in the postwar period, and ultimately to spread economic benefits fairly.4 Elster has

3

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i.e. loss of the enjoyment of life, or the Inter American Court’s notion of damages for injury to one’s life projects (proyecto de vida) suggest the importance of fully reflecting in economic terms the injuries caused by human rights violations” (Shelton, Remedies in International Human Rights Law, 22 23). De Greiff, The Handbook of Reparations; Leckie, Housing, Land, and Property Rights in Post Conflict United Nations and Other Peace Operations; Leckie and Huggins, Conflict and Housing, Land and Property Rights. Elster, Closing the Books, 170 180; Elster, “Land, Justice, and Peace”; and Elster, “Justice, Truth, Peace,” 89 90.

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shown that giving priority to past entitlements, as transitional justice and international legal discourses often seem to demand, is a recent phenomenon. Reparations in Europe after World War II were guided by a principle of compensation that in effect prioritized need over past entitlements. In Norway, the purpose of compensatory legislation was mainly “to assist survivors for purposes of reconstruction, not to recreate pre-war fortunes.” There was, Elster writes, “a general feeling that the whole country had suffered, and a certain reluctance to compare sufferings.”5 Similarly, Eastern European countries transitioning from communism to democracy implemented reparation policies constrained by principles of distributive justice, including area caps on restituted land and caps on compensatory awards.6 To the extent that these policies of “truncated restitution” were motivated by equity and that they freed resources for needbased programs, present need and social justice constrained the recognition of past entitlements. Since each of Elster’s allocation criteria has prima facie force, scarcity of resources means that in practice they will be in competition, and so difficult dilemmas are bound to arise. In his work on transitional justice, Elster has questioned the normative force of a general duty to implement reparation programs in transitional contexts, but he has not examined systematically the interaction between the three allocation criteria. In this chapter, I want to consider what three of the most influential theoretical accounts of reparations in the liberal tradition – reparations as preservation of individual autonomy, as protection of individual property rights, and as a necessary component of market institutions – may tell us about the balance between entitlements, need, and efficiency in the circumstances of war and its aftermath. These theoretical accounts of reparations were originally conceived for the relatively peaceful circumstances of life under a well-functioning state, and so my task will be to examine how they carry over to the nonideal circumstances of war and its aftermath. Since I will be concerned mainly with justificatory carryover, as it were, I will operate with what I take to be appealing versions of each account, without trying to justify its appeal or respond to criticisms and objections. The chapter proceeds as follows. Sections 1 and 2 discuss the autonomypreserving function of reparations. Section 1 introduces the concept of massively destructive war and argues that, somewhat paradoxically, the more destructive a war is, the weaker the autonomy-based justification of reparation payments. Section 2 builds on Elster’s concept of “aftergrowth” to argue that the value of autonomy may in fact run against the recognition of past entitlements – when the damages and dislocations caused by war have remained unaddressed for a considerable period of time, new life projects and expectations growing in the midst or in the aftermath of armed conflict have an autonomy-based claim to protection against corrective justice. Section 3 turns to libertarian and natural 5 6

Elster, “Land, Justice, and Peace,” 22; and Elster, Closing the Books, 170. Elster, Closing the Books, 174.

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law theories of reparations. Taking a Lockean theory of property as my basis, I argue that in wars that cause widespread poverty and unemployment, as most do, present need and the future access to sufficient resources for reconstructing a decent life may justifiably trump reparation payments. Efficiency and the (re)construction of markets is the focus of section 4. Perhaps surprisingly, of the three accounts considered, this one gives the clearest support to reparation programs. However, its support is based not on justice but on prudential considerations, and as such is contingent on the uncertain effects of certain social mechanisms. Section 5 concludes. To anticipate the gist of my overall argument, the three approaches recommend giving far more salience than is usually done in transitional justice discourse to the normative force of the forward-looking considerations of need and economic growth. Relative to the scope of transitional justice, they speak against the postulation of binding universal standards aimed at controlling policies of postwar reconstruction. They favor instead contextualism and emphasize in particular the moral significance of variations in the levels of material destructiveness and impoverishment caused by war. Before proceeding, a few conceptual remarks are in order. As I understand the term, reparations are meant to redress a harmful infringement of rights, and must in some way reflect – be identical, equivalent, or proportional – to the harm. Reparations may be due for right infringements that are harmful but not wrongful, as in harms suffered as collateral damage in war. Reparation takes the form of restitution when it fully restores the infringed right, as when taken land is returned to its previous owner, and it takes the form of compensation when a monetary equivalent to (or fraction of) the affected interest is given. My main focus will be on material harms, that is, losses of property, but I will also have some things to say about personal harms.7 I will leave aside questions of personal or collective liability to provide resources for postwar reconstruction; my exclusive focus will be on questions of allocation of resources, and I will assume throughout that resources are insufficient to satisfy all compelling grounds of allocation.

1. preservation of autonomy and massively destructive wars A powerful general answer to the question of why people should have a right to reparations invokes the protection of personal autonomy. Harms for which we think reparations are due are unwelcome and disruptive, and reparations aim to 7

In his first published piece on transitional justice, Elster argued that material suffering was being unduly emphasized in the Eastern European transitions to democracy. “Property rights are among the least rather than the most inviolable rights,” he wrote, adding that “those protecting individual dignity, autonomy and privacy are much more central” (Elster, “On Doing What One Can,” 17; see also Elster, “Land, Justice, and Peace,” 20 21). I agree with Elster that overly emphasizing reparations for material suffering can indicate a failure of moral judgment, but, as my discussion will show, I think that property rights are closely tied to but of course not coextensive with the values of dignity, autonomy, and privacy.

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restore, as far as possible, the original course of the harmed agent’s life. Restoring the original course of life is a way of securing and sustaining the plans and projects that were upset by the harm. In the interest of protecting people’s plans and projects, which are constitutive of the exercise of personal autonomy, it is imperative to make the agent that caused the harm, or some other suitable agent, liable to pay reparations in a way that restores the harmed agent’s ex ante plans and projects as completely, quickly, and surely as possible. The jurisprudence of the Inter-American Court of Human Rights on reparations comes close to this view. The American Convention on Human Rights empowered the Court to order state parties to compensate victims of violations of the Convention’s rights. In the 1998 Loayza-Tamayo v. Perú case, the Court introduced the concept of a “life plan,” and stated that an important objective of compensation awards was to contribute to restoring earlier life plans after unlawful disruptions. According to the Court, the concept of a life plan concerns “the full self-actualization of the person concerned and takes account of her calling in life, her particular circumstances, her potentialities, and her ambitions, thus permitting her to set for herself, in a reasonable manner, specific goals, and to attain those goals.” Human rights violations, the Court said, “radically alter the course in which life was on, introduce new and hostile circumstances, and upset the kinds of plans and projects that a person makes based on the everyday circumstances in which one’s life unfolds and on one’s own aptitudes to carry out those plans with a likelihood of success.” While the Court recognized that the full restitution and recreation of Ms. Loayza-Tamayo’s life plans was materially impossible, it ordered Peru to take measures that would approximate the ideal of full restitution, including giving her teaching opportunities in public institutions that offered the same benefits as the teaching jobs she had when she was detained, and to reinstate the pension and retirement benefits she had prior to the detention.8 Robert Goodin has unpacked this autonomy-based justification of reparations in three separate steps: “1. People reasonably rely upon a settled state of affairs persisting (or, anyway, not being interrupted in the ways against which compensation protects them) when framing their life plans. 2. That people should be able to plan their lives is morally desirable. 3. Compensation, if sufficiently swift, full, and certain, would restore the conditions that people were relying upon when framing their plans, and so allow them to carry on with their plans with minimal interruption.”9 8

9

On the basis of the “life plan” doctrine, the Court found that, “the claim seeking reparation, to the extent possible and by appropriate means, for the loss of options that the wrongful acts caused to the victim is entirely admissible” (Loayza Tamayo v. Peru, Reparations and Costs, §§147, 148, 151.) For a helpful discussion of the jurisprudence of the Court on reparations, see Antkowiak, “Remedial Approaches to Human Rights Violations: The Inter American Court of Human Rights and Beyond.” Goodin, “Compensation and Redistribution,” 152.

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Thus, the right to reparations aims to protect against certain intrusions that upset the exercise of individual autonomy. Delays in the reception of reparations create wrongful interruptions to ongoing projects and should therefore be avoided; the certainty of receiving reparations amounts to diminishing the risk of one’s projects’ unexpected failure. Thus, on this view of corrective rights, “what is sacrosanct is [. . .] preexisting expectations and the plans and projects that people have built around them.”10 The right to reparations increases the chances of completing one’s life projects if one is reasonably invested in them, which is intrinsically valuable. As it stands, this autonomy-based account of corrective justice is incomplete: it lacks criteria to identify which plans, projects, and expectations should be preserved and from what types of disruption. Rawls’s theory of pure procedural justice provides an answer. Reparations may be understood as aimed at protecting the integrity of the rights and procedures defined by the just background institutions of political society, within which the rightful exercise of autonomy takes place.11 Even though Rawls said little explicitly about “compensatory justice,” the concept appears implicitly in his discussion of the role of the legal system in implementing principles of justice. “A legal system,” he wrote, “is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation. When these rules are just they establish a basis for legitimate expectations. They constitute grounds upon which persons can rely on one another and rightly object when their expectations are not fulfilled.”12 The task of a doctrine of reparations is then to identify which rightful objections to unfulfilled expectations can be the source of what forms of liability in which agents. Legitimate expectations and their corresponding transgressions are defined by the rights and procedures established and adjudicated by the background institutions of society, and include in particular entitlements to primary goods, security in private property, and conditions of equal opportunity. Reparations aim to uphold and secure effectively the enjoyment of such goods and opportunities, and in this way to minimize the “reasonable fear” of exercising one’s liberty if its boundaries are uncertain or unprotected.13 10 11

12 13

Goodin, “Compensation and Redistribution,” 157. For helpful discussion of the connection between Rawlsian distributive justice and corrective justice, see Perry, “On the Relationship between Corrective and Distributive Justice,” and Kutz, “Justice in Reparations,” 296 302. Rawls, A Theory of Justice, 207, emphasis added. In this connection, a key Rawlsian idea is that “of an institutional division of labor between the basic structure and the rules applying directly to individuals and associations and to be followed by them in particular transactions.” Whereas compensatory justice applies directly to individuals and associations, its substance stems from the larger framework established by the background institu tions of society. According to Rawls, “If this division of labor can be established, individuals and associations are then left free to advance their ends more effectively within the framework of the basic structure, secure in the knowledge that elsewhere in the social system the necessary corrections to preserve background justice are being made” (Rawls, Political Liberalism, 268 269).

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Now, what can this autonomy-based account of reparations tell us about damages suffered in war? It is important to note that the account operates under a set of implicit empirical assumptions. Reparations can contribute to the value of personal autonomy only if most things other than the invaded right follow an orderly and predictable course. The exercise of personal autonomy presupposes a sufficient degree of predictability and stability in the world, and predictability and stability require that the background institutions of society govern social interactions efficaciously. This is one of the central tasks of functional legal systems and public institutions. In armed conflicts, however, these background institutions are often seriously dysfunctional and sometimes altogether lacking. Even though there is variation in the extent to which social interaction and public institutions are affected by war, they can be undermined to such a degree that we can reasonably question the normative force of corrective rights and obligations. I want to defend the claim that the more a war approaches the ideal type of massive destruction, the weaker the force of the autonomy-based justification of corrective rights and duties.14 I understand a massively destructive war to meet the following conditions. (i) Damage is the rule rather than the exception: Over half of the population of the country suffers some form of serious damage in the course of war, including serious violations of human rights, in particular loss of life, harm to bodily integrity, and incapacitating material losses. (ii) State institutions collapse and basic state functions unravel: The state is incapable of securing the life, safety, and property of a majority of its citizens because it lacks the capacity to protect and enforce rights.15 (iii) There is generalized uncertainty and risk: No reliable information exists to carry on or update midand long-term plans and expectations; shifting territorial control by armed actors and generalized uncertainty affects both the micro-world of private activities and the macro-world of institutional decision making.16 A short story can help to convey intuitively the relevant differences between peacetime and massively destructive wars for purposes of corrective justice. Assume that your house has been seriously damaged by fire. If the fire occurred 14

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The following draws on arguments made in Kalmanovitz, “Corrective Justice vs. Social Justice in the Aftermath of War.” As in Rwanda, where 95 percent of lawyers and judges were killed, imprisoned, or exiled during and in the aftermath of the genocide (Shelton, Remedies in International Human Rights Law, 320). In East Timor, the cadastral registry was deliberately targeted by pro Indonesian militia in 1999, which has made it very hard to adjudicate claims over land in the post occupation period (Fitzpatrick, “Land Policy in Post Conflict Circumstances”). As a student of Mozambique’s postwar economy puts it, “[W]ar uncertainty operates at both micro and macro levels of the economy. Capital, for instance, may be exposed to war destruction and dislocation at the micro level, through theft and violence (micro war uncertainty) and, at the macro level, through the abuse of state power in a partisan way (macro war uncertainty). In addition, macro war uncertainty includes the use of the government fiscal machinery and eco nomic regulation for war related purposes, which inevitably reduces transaction efficiency” (Brück, “Mozambique,” 61).

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in peacetime, it may be assumed that a working fire department has prevented other houses from burning, so that your house is the only one in the street to burn. Reconstruction of your house would allow you to recover earlier plans and projects and to resume your life nearly as usual (some goods may have been irretrievably lost.) Now imagine that the house has been burned in a war context. Your town being under siege, its fire department has been paralyzed, and so along with your house, a number of houses in the street have burned too. Already before the fire, the war had a crippling effect on the national economy, which caused a significant number of shops in your town to close, some of which have also suffered serious damage. Even if your house is repaired after the war, that would not contribute to the advancement of your earlier plans and projects. The war has transformed your social network beyond recognition, most public places you used to have around have been damaged or destroyed, and your previous means of subsistence have been extinguished.17 Your main task during postwar reconstruction will be to build a new life for yourself, because in massively destructive wars, destruction is so widespread that earlier plans and projects become irretrievable; token reparations would not bring you any closer to them. Actual cases of massively destructive wars are not hard to come by. Elster has devoted a great deal of attention to the aftermath of World War II, which was massively destructive for most of Europe. Another case in point is of course the 2003 U.S. invasion of Iraq. As Al Jazeera’s Dahr Jamail has reported, “[Y]ou don’t really know where you can go and what you can do and know that you’re going to have any kind of safety” in present day Iraq. “Any time that we send our kids out to school now,” he was told, “we don’t know for sure on any given day that they’re going to come back.”18 The massive destruction of cities and public infrastructure in Iraq, the unraveling of public order and security, and the exodus of refugees and internally displaced people have not only eviscerated the life projects of millions of Iraqis, but also make current conditions inhospitable for the creation of new mid- and long-term projects. It would be absurd to think that the status quo ante bellum should be decisive for postwar stabilization and reconstruction. All returnees must have access to decent housing and conditions for resettlement, even if not to the very same places they left, most of which are in any case destroyed or occupied by others who also stand in need of housing. Consider, by way of contrast, the case for reparations in Chile. In the aftermath of the 1988 transition to democracy, Chile implemented a wide of set reparation programs for victims of the Pinochet regime. Reparations programs were implemented as “relief and recognition” to “the families of disappeared detainees and victims of political executions, returning exiles, those who had 17

18

Wood, “The Social Processes of Civil War”; Humphreys, “Economics and Violent Conflict”; and Collier, “On the Economic Consequences of Civil War.” Goodman and González, “Ten Years Later.”

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been dismissed from their jobs for political reasons, and peasants who had been excluded from agrarian reform and expelled from their land.”19 Among the measures were life-long monthly “reparations pensions” for the families of the nearly 2,300 victims identified by the National Truth and Reconciliation Commission, scholarships for the education of the victims’ children, return programs for about 18,000 forced exiles, pension benefits and compensation for political dismissals, and compensation for the nearly 4,500 peasants who were unfairly excluded from land reform programs.20 There is no denying that the dictatorship irreparably destroyed the lives of thousands, but reparations in this case could in fact aim to undo some of the damages suffered under Pinochet: lost pensions could be estimated and recovered; material suffering could be mitigated; victims’ children were able to get the education they might have received under their parents care, and so on. While the Chilean government may be faulted for not doing as much as it could to restore the victims’ or their survivors’ lives, in contexts of massively destructive wars this complaint may be groundless.21 The reason is not simply that a war-torn state cannot possibly fund full reparation programs. It is not, in other words, a simple implication of the moral principle that “ought implies can,” for even when resources are insufficient or cannot possible fully restore ex ante conditions, the ideal of restitutio ad integrum could be used as a regulative ideal. The argument of this section cuts deeper than that: the ideal of restitutio ad integrum is not an appropriate standard of achievement in cases approaching massively destructive wars – it should be given up as a regulative ideal. The previous discussion points to an obvious alternative: invest heavily in (re)building a well-functioning and fair basic structure for postwar society.

2. autonomy and the “aftergrowth” of war If the previous section has shown that the value of autonomy may fail to provide support to corrective justice for war damages, Elster has argued, more strongly, that the value of autonomy may sometimes undercut corrective justice in war contexts. When wars cause dislocations that endure in time, new expectations

19 20 21

Lira, “The Reparations Policy for Human Rights Violations in Chile,” 56. Ibid. To illustrate, according to Lira’s estimates, the aggregate costs of reparation programs in Chile, which by 2003 were wrapping up, are close to US$46 million (2002 dollars); given its national wealth, arguably Chile could have spent more on reparation programs. Compare Colombia, where the long lasting armed conflict has caused literally millions of victims. The government has estimated conservatively that the costs of reparations programs for 2012 2020, which would include land restitution for over five million IDPs, will be around US$13.8 billion (2012 dollars). For Peru, Pablo de Greiff has estimated that, had all the homicide victims been compensated according to the standards of the Inter American Court of Human Rights, reparations “would have consumed more than the entire national yearly budget” for 2003 (De Greiff, “Justice and Reparations,” 456 457).

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and life projects grow out of them. In such cases, Elster writes, “although the injustice of the original wrong does not disappear, the injustice and social dislocations caused by repairing it increase with time and may ultimately come to dominate the initial injustice.”22 The reason why it would be wrong to dislocate such “aftergrowths” is that the expectations and life projects that grow in protracted wars claim prima facie protection on autonomy grounds. In prolonged armed conflicts, normal social processes are not so much suspended as transformed into new normal contexts for the unfolding of social life.23 That has happened in Mozambique, Colombia, East Timor, and elsewhere, where millions of internally displaced persons (IDPs) and refugees have more or less precariously stabilized their lives in resettlement areas, years after their forced migration and with ongoing armed conflict. In some cases, the interests and life projects of squatters and illegal occupants may be entitled to receive priority over those of titleholders who left their goods behind after enough time has passed – Elster suggests one generation, but arguably a shorter time could be sufficient. Similarly, even though return policies have been at the center of international and national efforts in contexts of massive displacement,24 the value of autonomy may in fact favor policies aimed at improving and stabilizing life conditions in resettlement areas. The case of reparations in East Timor illustrates the force of this line of argument. In 1999, after three quarters of all Timorese voters chose independent statehood over incorporation into Indonesia in an UN-backed referendum, prointegration Indonesia-backed militia retaliated with a destruction campaign of massive proportions. There were killings, looting, and arson throughout the territory, with public infrastructure, much of it built by the Indonesians, a preferred target. “Almost 70 percent of physical infrastructure was destroyed or rendered inoperable by militia action in September 1999; the result was devastation of a type usually confined to a war zone.”25 More than 75 percent of the Timorese population left their homes, fled to the countryside, or took refuge in West Timor. In many areas, over a third of all housing units were left useless, and most of them suffered some serious damage. When the rampage was over, there was a scramble for shelter and land. According to Fitzpatrick, as much as half of all houses in the capital, Dili, were occupied in 2000 by people other than its pre-1999 owners. Returnees occupied abandoned properties that had belonged to the Indonesians state or to its citizens, as well as properties owned by absent Timorese. In the countryside, land was occupied by subsistence farmers and peasants who began makings repairs and planting. Even though short-lived, the spell of violence meets the conditions of massively destructive wars. 22 23 24 25

Elster, Closing the Books, 172. Lubkemann, Culture in Chaos; and Arjona, Social Order in Civil War. Leckie, Returning Home. Fitzpatrick, Land Claims in East Timor, 8 9.

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The Timorese government has attempted to regularize the postindependence ownership regime through the implementation of a transitional land law (TLL), which would assign “original land rights” to private individuals or the state.26 Once real property assignments are defined for t0, the legitimacy of subsequent transactions and titles will be established on the basis of the Timorese civil code. This proposed TLL fails to reflect the value of autonomy on two counts: it recognizes past titles with virtually no qualification or restriction, and it neglects all post-1999 aftergrowths. The proposed bill recognizes claims from previous titles and from adverse possession, but claims from adverse possession can lead to full ownership rights only if there has been manifest possession for at least ten years, if there is manifest intention of ownership, and if there is no competing claim from a titleholder. Thus, the TLL bill gives priority to previous owners over those who have held possession since 1999, regardless of whether recovery has been attempted in the past or whether the original owner resides in the country. The only protection for IDPs’ interests is an eighteen-month grace period to leave once eviction has been ordered. Had the value of autonomy guided more strongly the post-1999 reconstruction policies, the interests of long-term illegal occupants and settlers would have been better protected. They should arguably have priority over titleholders who have alternative housing at their disposal, and over titleholders who did not advance claims for their property within a few years after independence (there was ample opportunity to do so). In most cases, illegal occupation has lasted for over a decade now. The importance of protecting the interests of illegal occupants is made stronger by the fact that most have occupied out of necessity and that there is no alternative decent housing available to them. Indeed, the strongest reason for relocating settlers is not restituting previous owners but rather improving their current housing conditions, which are often overcrowded and below decency standards.

3. libertarianism and reparations An alternative way of justifying the right to reparations for war damages relies not on the value of reestablishing past life projects, but on the value of the institution of private property, an inherent component of which is the recognition of compensatory rights for nonconsensual damages or takings.27 Two

26

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In 2009, the Timorese government released a draft version of the TLL for public consultation. Parliament approved the bill in March of 2012, but president Ramos Horta vetoed it. The bill under discussion is called “Special Regime for Determination of Ownership of Immovable Property,” and applies only to urban and peri urban areas. An English translation is available at http://www.scribd .com/doc/16767881/East Timor Draft Land Law June 2009 (last accessed August 12, 2013.) For a helpful summary of the bill, see International Crisis Group, “Managing Land Conflict in Timor Leste,” 13. As of early 2013, parliament had not approved a new version of the law. Thompson, “Rights and Compensation.”

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preliminary observations about this second approach are in order. First, its scope of application is narrower than the autonomy approach, as it covers mainly what Elster has termed material suffering, arguably some forms of personal suffering (if we are willing to treat personal suffering as violations of “self-ownership” rights) and, it would seem, no form of “intangible suffering.”28 Nonetheless, the approach can potentially account for a wide range of reparation claims, including land restitution claims and the right to return of IDPs and refugees. Second, private property has been justified by appeal to the value of autonomy, or to the protection of people’s “psychological investment in the stability of the property relation,”29 but other types of justification for private ownership are available, including the value of instituting a wellfunctioning market, of maximizing the efficient use of resources, of rewarding work rather than idleness, and of contributing to the development of personal responsibility and ethical life.30 This section will focus on libertarian defenses of property, which emphasize individual freedom and independence, and the following will examine arguments from market efficiency. Libertarians and natural law theorists emphasize the distinct values of independence and free agency, which property holders cultivate in the use and enjoyment of their goods. Under a private property regime, those who hold sufficient property will have at their disposal a private sphere of action that is largely protected from external interference. Ownership rights constrain state action both by limiting public interference in the use of property and by creating state obligations to protect, in particular by mandating or providing compensation for harmful infringement of rights.31 Along these lines, libertarians may respond to the arguments in the previous two sections by saying that the state should protect the right of recovering or being compensated for property unlawfully taken or destroyed during war, regardless of how, or of whether or not, that property would fit into one’s earlier plans and projects. This is because the most valuable feature of private property is precisely that owners can freely dispose of their goods, and so making corrective rights conditional on the availability of past life projects is a gross misunderstanding of the nature of property rights. The 28 29 30 31

Elster, Closing the Books, 168 183. Waldron, The Rule of Law and the Measure of Property, 51 58. Waldron, “Property and Ownership.” Libertarians defend corrective rights not only for wrongful violations of right, but also for harmful infringements, i.e., harmful but permissible actions contrary to the demands imposed by rights (for this distinction see Coleman, Risks and Wrongs, 282). As noted earlier, destruction of property as collateral damage in war is harmful but permissible, and as such it is not a violation but an infringement of property rights. There is disagreement among libertarians on whether liability to compensate for rights infringements should be based only on fault, or whether strict liability can be admissible too, but since my concern here is with the allocation of resources in postwar reconstruction, I will not get into the details of that debate. For a suggestive discussion and a qualified defense of strict liability in the state when no fault liability can be assigned to individuals, see Vallentyne, “Responsibility and Compensation Rights”; Steiner, “Responses”, 249 250.

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freedom and independence associated with private ownership should be categorically protected, also in the circumstances of war. In the case of massive internal displacement and refugee flows, emphasizing past projects would have the odd implication of making restitution conditional on return, which would arguably be a violation of personal freedom and an opportunity for abuses of state authority.32 As is well known, natural law theorists and libertarians conceive of property rights as being determined largely on the basis of consent. This is the basis of the “historical entitlement” construction of legitimate ownership. In Nozick’s famous rendering, A’s property in P is legitimate if and only if P was not previously owned (original acquisition); if A acquires P from B, who owned it legitimately and gave it freely (legitimate transfer); or if A gets P as compensation for an infringement of her legitimate rights (principle of rectification).33 There are many ways of filling in or qualifying the substantive details of this iterative procedure.34 In what follows I will focus on a suitable reconstruction of Locke’s well-known version, which holds that original acquisition results from “mixing one’s labor” with natural resources, and as such is individualistic and unilateral, and that the validity of subsequent transfers depends typically on the owner’s authorization, an important exception being material liability for injuries.35 Now, any defensible version of natural law theory or libertarianism must take seriously the possible distributive effects of letting the iterative procedure of historical entitlements run its course – in particular, must be prepared to correct its negative impact on human welfare through poverty traps, “structural exclusion,” abrupt market fluctuations, and so on. I will not argue for this fundamental requirement here. Others have shown persuasively that Nozick’s theory does not satisfy it,36 but the Lockean theory, like contemporary “left-libertarian” theories, do incorporate general principles meant to oversee and constrain the iterative procedure. Of these general principles, humanitarian duties – or, in

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This argument has been made in the context of reparation programs in Bosnia Herzegovina, which initially conditioned restitution on return but later switched to an unconditional recogni tion of prewar titles, partly due to the abuse of the conditionality proviso (Philpott, “From the Right to Return to the Return of Rights”). It is worth noting that, whereas in East Timor the post 1999 scramble for property was a virtually random phenomenon, in Bosnia the patterns of property abandonment and illegal occupancy closely reflected ethnic cleavages and followed official policies of racial discrimination. In Bosnia Herzegovina, but not in East Timor, strict adherence to restitution can operate as an antidiscriminatory, minority protecting mechanism. Nozick, Anarchy, State, and Utopia, 150 153. Vallentyne and Steiner, Left Libertarianism and Its Critics; and Vallentyne and Steiner, The Origins of Left Libertarianism. For more detailed exegetical discussion and textual references to Locke, see Kalmanovitz “Sharing Burdens after war,” on which the following draws. My reading of Locke is indebted to Simmons, The Lockean Theory of Rights, and Sreenivasan, The Limits of Lockean Rights in Property. Sen, “The Moral Standing of the Market”; Elster, Local Justice, 230 236; and Barry, “Lady Chatterley’s Lover and Doctor Fischer’s Bomb Party,” 20 27.

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Locke’s terms, rights derived from “charity” – and the sufficiency condition have important bearings for questions of reparations for war damages. The humanitarian principle in the Lockean theory submits that those who are unable to work and who are at risk of perishing for lack of access to goods have the enforceable right to take goods from anyone whose loss does not entail a comparable risk. Humanitarian duties require that one gives from one’s material surplus to those seriously deprived and unable to provide for themselves through labor. The motivation underlying this principle, Locke says, is a “fundamental law of nature,” according to which “all, as much as may be, should be preserved.”37 For Locke this preservation should normally take place through the exercise of one’s own independent labor power and never at the expense of one’s freedom, say through one’s subjection to the will of the well-off.38 Along these lines, the sufficiency condition mandates that people should have access to “enough and as good” resources as others have, provided that they invest a reasonable amount of labor in acquiring these resources. Ultimately, the condition stems from Locke’s fundamental concern that exclusive appropriation should not eliminate anyone’s opportunity to appropriate or at least use goods similar to those that have already been appropriated. Even though sufficiency does not result in clear-cut assignments of rights and obligations, it arguably mandates the state to guarantee its citizens’ opportunities to work under fair conditions, so that people with similar capacities and motivation can secure similar positions in society.39 Now, wars impact private property regimes in several ways. There is nonconsensual takings and destruction of property, which violate the iterative procedure. Wars also severely limit if not altogether destroy the capacity to work in many, thus triggering humanitarian duties, often on a large scale; they also limit the opportunities to work of the able-bodied population, as they often cripple labor markets and cause large economic losses, in some cases reducing per capita GDP by more than half.40 The closer a war is to being massively destructive, the more historical entitlements will be violated, and the more extensive and urgent the demands of the humanitarian principle and the 37 38 39

40

Locke, Second Treatise, §183. Ibid., §§25 26. Sreenivasan, The Limits of Lockean Rights in Property, 47 58, 113 119. Neither Sreenivasan nor, of course, Locke argues directly for equality of opportunity, but equal opportunity is consistent with, and an adequate response to certain issues identified by Locke’s theory. Sreenivasan summarizes these issues as that of securing that “everyone’s access to the means of production be maintained in a manner that conserves her liberty to produce a surplus” (7), and proposes making access to the “greatest universalisable share” of land a criterion for conformity with the sufficiency condition (117). While this may be adequate for agrarian and pastoral economies, access to advanced education, acquiring skills for a technified and service economy, and so on may be far more relevant in other contexts. In contexts of internal displacement, and from a sufficientarian perspective, receiving high quality education and public services may be preferable to getting land restitution. Stewart and Fitzgerald, War and Underdevelopment, 125 143.

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sufficiency condition. From a Lockean perspective, then, three tasks must be undertaken: (i) rectify violations of past entitlements, in particular restitute rightful owners or provide them with compensation, (ii) discharge humanitarian duties, and (iii) create conditions that uphold the sufficiency condition. Only the first task is based on past entitlements; humanitarian duties are based on severe need, and the sufficiency condition has both need and development components.41 How should these tasks be prioritized? It is clear that humanitarian duties should take priority: they aim directly at life preservation, which in the Lockean theory is the first and overriding priority. It is far less clear how to prioritize the tasks of rectifying procedural violations – that is, restoring previous titles or compensating for nonconsensual takings or destruction – and of investing in the sufficiency condition, which may include consolidating secure livelihood conditions, reconstructing public infrastructure, improving public education, and so on. I submit that when war causes generalized impoverishment, giving priority to reestablishing past titles and rectifying past wrongs would unduly privilege those who have suffered direct damages during war at the expense of those who have not, but who have nonetheless suffered indirectly by the general economic decline and the collapse of social networks and public services caused by war. The good luck of having owned assets before the war, and the bad luck of having suffered direct damages in war, should not determine decisively one’s life prospects in postwar reconstruction. The case of land restitution in Peru illustrates well the competing imperatives at play. The war between the Shining Path and the Peruvian government caused the forced migration of between 500,000 and one million peasants from central highland areas to urban centers.42 Before the waves of displacement began in the early 1980s, well-off farmers had developed “dual household strategies” that maximized their income and life prospects; they kept urban dwellings to optimize their children’s education and occasionally work for hire, and also rural dwellings for livestock and agricultural production.43 When peasants were targeted in the worst of the civil war, dual households had a relatively easy 41

42 43

Following Kutz, it may be argued that in war contexts Lockean historical entitlements are likely to be so vitiated by past social struggles and authoritarianism that the task should be given up altogether (Kutz “Justice in Reparations,” 286 287). In East Timor, e.g., the Portuguese colonizers appropriated land held under traditional tenure to set up coercive systems of cash crop production, and later the Indonesians implemented counterinsurgency “transmigration programs,” forcing thousands of people to live in “model villages” away from their land (Fitzpatrick, Land Claims in East Timor, 36 38). As could be expected, when the Timorese government proposed to restitute Portuguese and Indonesian titles, old grievances and claims against these programs resurfaced (International Crisis Group, “Managing Land Conflict in Timor Leste,” 10 11). While Kutz’s point is well taken, my argument here is that, even if we assume the legitimacy of at least a portion of past titles, and thus adopt the strongest possible version of the Lockean theory, the other dimensions of the Lockean theory, which Kutz does not recognize, would take priority. Internal Displacement Monitoring Centre, “Peru: Reparations Begin but IDPs Excluded.” Stepputat and Sørensen, “The Rise and Fall of ‘Internally Displaced People’ in the Central Peruvian Andes,” 774.

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way out, as they could move to their urban dwellings for as long as necessary, while those without dual households – the poorer ones – either decided to stay or migrated under the direst conditions to urban centers.44 After the capture of Shining Path leader Abimael Guzmán in 1994, security conditions and the prospects for return to rural areas improved. However, during the fifteen years of civil war, land tenure was thoroughly transformed in the areas with the highest rates of displacement. Some of the forcibly displaced moved into alien property, and some of those who stayed took over the land of those who left. Among those who stayed, some refused to leave the land they had occupied, claiming that, since they had “defended their lands through the worst of the war, they now have claims over the property of those who took ‘the easy way out.’”45 Technically, the Peruvian state had the power to take and reassign land that had been abandoned for more than two years, and so it could choose to assign occupied land to its worse-off occupants.46 As elsewhere, however, the official policy in Peru has been to restitute land and give returnees reparation benefits, including agricultural tools, seeds, food, medicines, blankets, and kitchen utensils. Those who did not migrate do not qualify for these benefits. Beneficiaries of the reparation programs have in fact used the benefits for development purposes. As Stepputat and Sørensen point out, “several owned property in the city, but felt that only renewed access to farmland and livestock could secure a future urban living [. . .] their vision of return was not a permanent settlement in the rural communities but rather a livelihood based on dual residence.”47 In effect, welfare benefits were received under the guise of reparation payments by families that did not need them most, and those that needed them most did not qualify for access. In this and similar cases, the emphasis on reparation policies results in the denial of benefits and access to land to the poorest farmers, who may have managed to marginally improve their prospects in spite of the war, and who are likely to be thrown into insurmountable dire poverty if they lost their land, a poverty more dire than that of beneficiaries of restitution and compensation. To see why this priority order is objectionable, consider, as an extreme case, reparation claims from affluent victims – that is, people who were well-off before the war, lost some of their assets during the war, but remain relatively well-off after the war – against basic welfare claims from the non-victimized poor, that is, people who were poor before and throughout the war, but who did not suffer 44

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Deng, “Report of the Representative of the Secretary General Submitted Pursuant to Commission on Human Rights Resolution 1995/57,” 19 21; Stepputat and Sørensen “The Rise and Fall of ‘Internally Displaced People’ in the Central Peruvian Andes,” 774 775. Deng, “Report of the Representative of the Secretary General Submitted Pursuant to Commission on Human Rights Resolution 1995/57,” 26. Deng, “Report of the Representative of the Secretary General Submitted Pursuant to Commission on Human Rights Resolution 1995/57,” 21 22. Stepputat and Sørensen, “The Rise and Fall of ‘Internally Displaced People’ in the Central Peruvian Andes,” 784.

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damages directly in the war. The effect of prioritizing reparations over sufficient welfare benefits will be to reduce the range of life opportunities among the nonvictimized poor, and to restore at least some of the affluent victims’ advantages. While affluent victims can use their compensatory payments for reinvestment, the non-victimized poor have little or no capacity for investment. Resource scarcity thus creates a dilemma: either allocate land and public funds to fulfill the demands of reparation, or invest public funds in advancing the basic rights of the worst-off. Adapting the Lockean sufficiency condition, this dilemma may be confronted by saying that reparations may be given only if enough and as good resources are left for the non-victimized poor to have dignified lives after war. Thus seen, war appears as an exogenous equalizing shock, which may justify trumping property titles by humanitarian and sufficiency concerns. Those who have not been directly affected by the war should also have a fair chance to live decently and to remake their lives in the aftermath of war. When a war causes endemic poverty and thus affects indirectly a large group of the population, when it causes a sharp decrease in the opportunities for decent work, prioritizing resource allocation on the basis of past entitlements would unfairly limit the postwar life opportunities of the non-victimized poor. Now, to be clear, forced migrants seeking to recover assets are often also poor and vulnerable before displacement, and so the distinction between affluent victims and non-victimized poor may often be practically irrelevant. The more practically relevant distinction is between victimized and non-victimized poor. In Peru, even families with dual households lived in relative poverty,48 and so their life prospects could be transformed significantly by recovering taken assets. From a Lockean perspective – and also, it would seem, from the perspective of left libertarian theories of property that take seriously the exclusionary dimension of private appropriation – they should indeed be able to recover their land, but only if its current occupants receive enough land elsewhere. They should receive monetary compensation for damages, but only if development programs are implemented for all poor households, regardless of whether they stayed, or migrated coercively or freely. This conclusion runs contrary to a common rejoinder among transitional justice theorists and advocates. It is not rare for governments in charge of implementing transitional justice to justify inaction on the reparations front by citing action on the welfare front. As we just saw, this justification hinges on an order of priorities that can be defended from the standpoint of the Lockean theory. Transitional justice discourse has typically rejected this justification.49 48

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Deng, “Report of the Representative of the Secretary General submitted pursuant to Commission on Human Rights resolution 1995/57.” For example, De Greiff, “Justice and Reparations,” 470 471; De Greiff, “DDR and Reparations: Establishing Links between Peace and Justice Instruments,” 335 336; and Guillerot, “Reparaciones en la transición peruana,” 18, 24 25.

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However, as long as the scarcity premise is credible, and as long as welfare programs do target the neediest recipients, this way of prioritizing public resources can be justified. The transitional justice literature has been unduly agnostic about, or even blind to, considerations of distributive justice.50 But even a theory as protective of reparation claims as Locke’s can provide the basis for a more balanced approach.

4. market efficiency As noted previously, an alternative defense of corrective rights relies on the value of markets as social institutions, which are perhaps uniquely capable of efficiently coordinating social interaction and distributing information, goods, and services in society. Markets can be characterized by their assignment of exclusive rights to use and trade goods and services. They may be contrasted to systems of inclusive commons, which allow for the free use of resources in a particular area, and to centralized systems of state control, in which the state owns resources and runs fundamental economic tasks such as setting prices and producing and distributing goods. Between these two extremes, a wide set of arrangements can count as markets, varying in their degree of freedom from state intervention and in their schemes of profit sharing, from capitalist societies to market socialism.51 Whatever form they take, markets presuppose the absence of force and fraud in the exchange of goods and services (and conversely, it would seem that whenever the imperative of compensating material losses is validated, market institutions are to some degree recognized.) Consequently, markets must have enforcement agencies capable of applying compensatory norms in cases of force and fraud, and the point of reparations is precisely to secure generalized respect for individual entitlements.52 My purpose in this section is to examine what market efficiency can tell us about reparations for war damages. More precisely, I will assess the claim that reparations for war damages are necessary to minimize the disruptions caused by wars on markets, or to reestablish market institutions in the aftermath of war. If successful, this approach may contain the erosion of the principle of reparations for war damages that the autonomy and Lockean approaches have 50 51

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Miller, “Effects of Invisibility”; Bergsmo et al., Distributive Justice in Transitions. Elster and Moene, “Introduction.” Since the transitions from communism to capitalist democ racy, it has been assumed that a capitalist economy will be the background of restitution and compensation programs of transitional justice. As Offe has noted, market socialism, even though in principle a reasonable option, was never seriously considered in Eastern Europe (Offe, Varieties of Transition, 105 108). It is somewhat odd to require land restitution in the aftermath of civil wars in which belligerent groups sought collective ownership of land. In El Salvador, e.g., there has been no significant reparations program, but the peace agreements included the recognition of some of the land conquests of the FMLN, legalized some informal agricultural cooperatives, and had some land reform components (Wood, “The Social Processes of Civil War”). Coleman, Risks and Wrongs, 61.

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caused. I will argue that efficiency does provide some reasons for recognizing reparation claims, but their ultimate basis is prudence, not justice. As such, reparation claims are relatively weak and defeasible, contingent on the validity of uncertain and complex social mechanisms. Before spelling out in more detail the value of efficiency, I should note that market efficiency depends on the existence of institutions that minimize transaction costs. The fundamental theorem of welfare economics, which holds that a social state is Pareto optimal if and only if it is a market equilibrium, presupposes ideal market conditions such as perfect competition, perfect information, and no externalities. Real life markets can only approximate these ideal conditions; imperfect but well-functioning markets are already great institutional accomplishments.53 So, in order to increase efficiency in war and postwar contexts, public institutions must be built that refrain from predation, rebuild damaged public infrastructure, lower transaction costs, establish the rule of law, and so on. Whether recognizing prewar titles will contribute to (re)building rule of law institutions, as transitional justice discourse often claims, remains an open question. Two separate strands of the value of market efficiency may be distinguished. There is, first and most elementary, the incentive to take good care of resources and avoid waste. As Aristotle wrote in his famous critique of Plato’s communism, “what is held in common by the largest number of people receives the least care. For people give most attention to their own property, less to what is communal, or only as much as falls to them to give. For apart from anything else, the thought that someone else is attending to it makes them neglect it the more.”54 In contemporary discussions, the image of the tragedy of the commons is sometimes used to convey the idea that, without some exclusive assignment of goods to individuals, there would be no incentive to moderate present exploitation and consumption.55 The second strand of market efficiency emphasizes how markets ease the movement of goods and services to more highly valued uses, so that the pursuit of private interests by each individual leads to superior social states. In Jules Coleman’s words, the basic idea is that “markets promote efficiency through a series of Pareto improvements, mutually advantageous voluntary exchanges made possible by property rules, and markets promote efficiency in a less costly fashion than might otherwise be required.”56 While the concepts of Pareto improvement and Pareto optimality capture attractive features of markets, as normative principles they stand in need of important qualifications. It would be hard to dispute the normative force of Pareto improvements as a criterion to compare the distribution of goods in 53

54 55 56

Stiglitz, “The Invisible Hand and Modern Welfare Economics”; and Coleman, Risks and Wrongs, 59 62. Aristotle, Politics, 1261b32, pp. 28 29. Hardin, “The Tragedy of the Commons.” Coleman, Risks and Wrongs, 78.

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society – if for a given social state, some individuals can be made better off without making anyone worse off, then their welfare is a prima facie reason for action – but its applicability is limited because, for any given set of goods and individuals, only a small fraction of social state pairs is Pareto comparable. Pareto optimality, on the other hand, is not a binary relationship, but it is weak and unappealing as an evaluative criterion. As Amartya Sen has put it, “[A] state can be Pareto optimal with some people in extreme misery and others rolling on luxury, so long as the miserable cannot be made better off without cutting into the luxury of the rich.”57 The Pareto criterion must consequently be supplemented with other criteria that help us identify which among the Pareto optimal states should be favored or pursued. Here I will simply adhere to Rawls’s dictum that principles of social justice must constrain efficiency considerations or, as he said, that “efficiency is to be balanced against equity.”58 Let me now examine what efficiency may tell us about compensation for war damages, considering first the Aristotelian idea of incentives for care and labor investment. Can we expect compensation for war damages to provide incentives for better use and care of resources? Generally speaking, incentives emerge only in the context of more or less stable patterns of events and interaction, relative to which people can adjust their behavior. Depending on the material destruction and character of violence (discriminate or not, more or less predatory on civilian property, etc.), and on the public expectations about future patterns of violence, compensation may indeed provide incentives to invest care in goods and resources. If the destructiveness of war violence is low and expected to remain low, or if force is used sporadically and discriminately, then the state’s provision of compensation for war damages may be a good way to minimize the disruptive effect of war on markets – indeed a way to affirm the state’s supremacy and control vis-à-vis its enemy’s challenge. In such cases, if the state is generally seen to compensate effectively, farmers, laborers, and producers will have a lower perceive risk of loss to war predation or destruction, and hence a higher incentive to invest. Thus seen, state compensation operates as a public insurance mechanism against the risk of suffering damages in war. If the risks and costs are relatively low, the state may well be able to compensate effectively and sustain this perception. Therefore, in armed conflicts that see only low and sporadic levels of violence, compensation can generate the kind of incentives that Aristotle talked about. It is unclear, however, that reparations can have a similar effect in conflicts nearing massively destructive wars. If serious damage is perceived to be the rule rather than the exception, rational agents will be dissuaded from investing labor and resources long-term, unless the expected gains are far superior to their investment. Unlike low intensity conflicts, in these cases the state will be incapable of working effectively as an insurance mechanism that could offset the 57 58

Sen, On Ethics and Economics, 32. Rawls, A Theory of Justice, 62; see also Sen, “The Moral Standing of the Market,” 9 14.

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perception of risk. The collapse of public institutions and revenues will make it financially impossible to provide effective compensation for an extensive portion of war damages. Cases of massively destructive wars that have an extensive impact on the availability and distribution of real property raise a basic theoretical question. While there may be strong efficiency reasons for reestablishing well-functioning markets at the end of the war, and for trying to minimize the effects of war on markets, it is not clear why this should be done precisely on the basis of prewar entitlements. Why should that particular distribution prevail, say, over a Pareto superior distribution that can be reached from the de facto distribution at the end of war? Moreover, and in light of the conclusions of the previous section, why not seek to achieve a Pareto optimal distribution that gives enough land to those willing to invest their labor so that they can make a decent living, rather than privileging claims based on previous titles? Two considerations run against this blank slate proposal. The first is that simply declaring past titles null and void across the board will undermine the prospects of present and future market transactions. For land and real estate, a blanket nullification of past titles would in effect freeze all (legal) transactions, because present transactions must necessarily rely on titles stemming from the past; generalized uncertainty about the standing of past entitlements in effect contaminates all present and future transactions.59 Thus seen, recognizing the force of past titles is not a matter of justice but rather a way of preserving a valuable social convention. Past titles are an obvious focal point for determining who can legitimately transfer what, and so mandating state support for prewar titles is a straightforward way of setting the market going under state oversight. The second consideration is that, from the standpoint of efficiency, it is important to secure expectations, and public adherence to past titles may help to signal the state’s intention to protect private property and abstain from arbitrary takings. This may be particularly the case when a postwar regime needs to earn the trust of investors and demonstrate publicly its willingness to abide by the rulings of impartial and independent legal agencies.60 The scenario that should be averted here is that of a government or ruling party using its power to distribute resources in pursuit of its own political agenda, for example, rewarding members and allies, bribing opponents, and so on. In Peru, the Fujimori government was denounced for using the national agency in charge of land redistribution and formalization of titles precisely on these grounds.61 The self-restraint and discipline shown in adhering to past titles signal the government’s commitment to rule-bound behavior in the future. This two-fold rejoinder has some force, but it depends on causal claims that are hard to prove and controversial. The existence of traditional and informal 59 60 61

Waldron, The Rule of Law and the Measure of Property, 72. Offe, Varieties of Transition, 115 116. Internal Displacement Monitoring Centre, “Peru: Reparations Begin but IDPs Excluded,” 76.

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forms of land tenure – common among IDPs – shows that there may be social conventions on ownership without the backing of state titles; in fact, attempts to formalize tenure may undermine informal conventions and generate social conflicts.62 New informal ownership equilibria can emerge in the midst and aftermath of armed conflicts. On the other hand, while formalization is often defended for its role in attracting much needed foreign capital, particularly for large-scale agricultural production,63 there is ongoing debate among development economists on the empirical validity of this line of argument. After examining a wealth of empirical evidence on the effects of formal titling, Michael Lipton concludes that “titling (or communal allocations) can create secure and widely acceptable land claims that stimulate investment – or land grabs by local Big Men or rich outsiders that increase inequality and create resentment, social insecurity, or conflict that destroy the incentive to invest.” The issues involved are intricate and the causal effects hard to isolate, but generally speaking there does not seem to be an increase in rural investment once land ownership is formalized.64 Moreover, it is by no means clear that big capital investment will result in more efficient agricultural production, not to mention fair redistribution. According to Albert Berry, in economies in which labor costs are low, largescale agricultural production tends to be less efficient than production by small family units – family-based production in smallholdings tends to maximize and optimize land exploitation.65 In sum, then, formalization may be unnecessary to sustain an ownership convention and need not attract large investment capital, and large capital for industrial agriculture need not maximize efficiency. Regarding the signaling effect of reparation programs, it seems in principle possible that any form of adherence to norms or law-abidingness could do the work, be it restoring past titles, giving formal titles to illegal occupants, or assigning plots to landless peasants on the basis of need. As long as the state can make a credible commitment to the effect that an eventual nullification of previous titles will be strictly a one-shot event, motivated by the unique circumstances of postwar reconstruction, then reparations need not be the only viable 62

63

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In East Timor, the ongoing “Ita Nia Rai” process of land registration and titling has shown how robust informal social conventions can be. In many rural and peri urban areas, customary use and long term occupation have reached a peaceful equilibrium, which has provided the basis on which formal registration proceeds. Neighbors mark in a map the property they claim as their own, and mediation on disputed plots follows. The incidence of disputes has been strikingly low, but it has been feared that formalization may create conflicts as it spreads, particularly in rural areas where long standing agreements to disagree on exact borders have been used to avoid conflicts. In a remarkable reversal of Locke’s views on property, instances have been recorded where attempts to define precise borders create rather than solve conflicts (International Crisis Group, “Managing Land Conflict in Timor Leste,” 12; Fitzpatrick and Barnes, “The Relative Resilience of Property”). For example, Nixon, “Challenges for Managing State Agricultural Land and Promoting Post Subsistence Primary Industry Development in Timor Leste.” Lipton, Land Reform in Developing Countries, 171 180. Berry, “The Economics of Land Reform and of Small Farms in Developing Countries.”

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signal. However, it all depends on public perceptions that are hard to control or manage, and it may well be that, in some cases, restitution or compensation is the only available signaling device. Be that as it may, these are strictly prudential considerations; thus understood, reparations are not required by justice but rather a political constraint on economic development. Leaving convention and signaling questions aside, Pareto efficiency may favor illegal occupants over titleholders in contexts of massive internal displacement. The reason is that the personal significance and value to former owners of real property may have decreased significantly during and after the war, plausibly the more so the longer the war has forced them to change, adapt, and find new ways of life. It has often been found that IDPs prefer to stay in areas of resettlement rather than return to their land. This is frequently due to the perception that it would be unsafe to return, or to the fact that employment and social services, particularly health care and education, are better in cities than in the remote rural areas of origin.66 As long as the gap in security and social services between areas of settlement and eviction persists, most will prefer staying – and the longer the gap endures, the more unlikely it is that they will ever return. Illegal occupants may consequently value their current dwelling more than titleholders, the more so, the more time and energy they have invested in them. Evicting illegal squatters on behalf of former owners may thus be Pareto inferior to reassigning titles and giving expropriated owners a (possibly modest) monetary compensation. It would seem to follow that, from a Pareto perspective, third parties not currently occupying abandoned land but interested in using it could also be favored over titleholders, as long as their interest in acquiring and exploiting is sufficiently strong. If investors with the capacity of exploiting abandoned land have a stronger preference than that of IDPs in returning and using of it, then it would seem that, just as occupiers should be favored, investors should be favored too. This, however, is a case in which equity must balance Pareto efficiency. In the case of squatters, there is an implicit assumption that they need the land they occupy and have neither alternative dwellings nor means of payment. When it comes to third-party investors, there is no special need and there is capacity to buy from IDPs. The challenge in this case is rather to guarantee that transactions between investors and IDPs will be fair, given the economic necessity of the latter. In Colombia, there are ongoing disputes

66

A 2011 survey of IDPs in Colombia found that 73 percent had no intention of returning; among these, 56 percent said that the main reason was fear and 15 percent that they had resettled satisfactorily (Salinas, Hernández, and Kalmanovitz, “Restitución de Tierras y Territorios”). In Peru, IDPs’ reluctance to return, in spite of improving security conditions in rural areas, was largely a consequence of better social services in urban centers (Stepputat and Sørensen, “The Rise and Fall of ‘Internally Displaced People’ in the Central Peruvian Andes.”) The main reason for the widespread reluctance to return in Bosnia Herzegovina is the persistence of ethnic tensions in return areas (Philpott, “From the Right to Return to the Return of Rights”).

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between agro-industrial firms and IDPs because the former have planted longterm, high-yielding crops such as oil palm and soy on land abandoned by or coercively taken from the latter.67 Even though the alleged priority of the Colombian government has been to incentivize return, in these cases it has tried to balance the interests of IDPs and of investors by promoting legislation that creates “use contracts” (essentially long-term lease agreements) between IDPs and agro-industrial firms. As long as the government manages to guarantee the equity and fairness of these agreements, they may be a good compromise, but the bargaining asymmetry between IDPs and agro-industries, and the weakness of state institutions in rural areas, does not give much reason for hope.68

5. conclusion A basic methodological premise of the preceding discussion is that the practical implications of general principles of justice are partly a function of the particular circumstances of their application. I have shown how the principles that individual autonomy, freedom, and independence ought to be protected apply differently in peacetime and wartime. In peacetime, but not in wars approaching the massive destruction extreme, the principle of autonomy can justify conferring the status of right to the interest in receiving reparations for harmful infringements of rights. The UN guidelines on the right to a remedy and reparation, as well as the Inter-American Court’s “life plan” doctrine, are perfectly apt for the peaceful conditions of life under a well-functioning state, but inapt for the circumstances of massively destructive wars. It follows that the interplay among Elster’s three allocation criteria will vary along with variations in the destructiveness and specific patterns of victimization of particular wars. It may be that giving priority to past entitlements will be justified in certain wars, but this seems unlikely. It rather seems that need and equitable development should, as a matter of justice, often take priority. A possible objection to my argumentative strategy in this chapter is that I have only shown that three well-established accounts of reparations do not support reparations for war damages – but maybe other persuasive accounts do. The transitional justice literature has articulated an account at the heart of which is the idea that reparations embody a form of recognition that can serve to restore the agency and citizenship of victims of rights violations. Martha Minow has claimed that reparations can “undo the dehumanization” of war victims by serving as an instrument of official acknowledgment and recognition,69 and similarly Pablo de Greiff has argued that reparations provide “the sort of consideration which is owed to whoever is negatively and severely affected by

67 68 69

Grupo de Memoria Histórica, La Tierra en Disputa, 109 200. Salinas, Hernández, and Kalmanovitz, “Restitución de Tierras y Territorios.” Minow, Breaking the Cycles of Hatred, 16, 23 24.

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the actions of others.”70 Ultimately, this conception of transitional reparations hopes that reparations can contribute to a deep political transformation of societies in transition. Those who have been victimized have often been at the margins of political society, and recognition via reparations will contribute, it is claimed, to restoring their moral and political standing. Recognition of war victimhood is no doubt a valuable and necessary undertaking in postwar reconstruction, but it is unclear that it should take the form of a right to reparations. If the purpose of reparations is largely symbolic, then, as Christopher Kutz has put it, “there is no good reason for the symbolism to be as expensive as this.”71 Transitional justice practice has produced several alternative mechanisms, including truth elucidation and criminal trials, which can advance the goal of recognition along with other social purposes. De Greiff has argued that unless these transitional justice alternatives are backed by reparation payments, they would appear to their audiences as, respectively, “cheap talk” and “inconsequential revanchism,”72 but this claim rests on assumptions about human and social psychology without sufficient empirical support.73 Adrian Vermeule has argued that transitional reparation programs, even if indefensible in principle, should be implemented as a form of “rough justice” because the alternative of doing nothing would be even worse.74 But as I hope the preceding discussion has made clear, the alternative need not be inaction but public investment in competing social programs, from which taking resources away can be worse than inaction on the reparations front. In addition to recognizing victimhood, other valuable tasks, such as relieving poverty and reconstructing state institutions, are also enormously important and mandatory as a matter of social and political justice. Along with the dehumanization of victims, the indignity and suffering associated with extreme poverty and the inability to enjoy basic rights are also at stake in postwar reconstruction. Any defense of transitional reparations must be capable of justifying the diversion of public funds from these urgent tasks. It may well be that transitional justice mechanisms can contribute to a deep transformation of political society through its symbolic effects,75 but it seems more plausible to suppose that consistent and sustained investment in social justice, institutional rebuilding, and economic development can be deeply transformative. It is hard to see how transitional

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De Greiff, “Justice and Reparations,” 460. Kutz, “Justice in Reparations,” 303. De Greiff, “Justice and Reparations,” 461. Kutz, “Justice in Reparations,” 303. Vermeule, “Reparations as Rough Justice.” Although for arguments against consequentialist defenses of transitional justice mechanisms, see Elster, “Retribution”; Snyder and Vinjamuri, “Trials and Errors”; Snyder and Vinjamuri, “Preconditions of International Normative Change”; and Mendeloff, “Truth Seeking, Truth Telling, and Postconflict Peacebuilding.”

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justice can have the long-lasting transformative effect that its advocates envision if it is not accompanied with sustained investment in the construction of inclusive, law-abiding political institutions. And when resources are scarce, reparation programs may have to be sacrificed for the latter’s sake. References Antkowiak, Thomas M. 2008. “Remedial Approaches to Human Rights Violations: The Inter American Court of Human Rights and Beyond.” Columbia Journal of Transnational Law 46, no. 2: 351 419. Aristotle, 1998. Politics. Translated, with introduction and notes by C. D. C. Reeve. Indianapolis: Hackett Publishing Company. Arjona, Ana Maria. 2010. “Social Order in Civil War.” Ph.D. dissertation, political science, Yale University. Barry, Brian. 1986. “Lady Chatterley’s Lover and Doctor Fischer’s Bomb Party.” In Foundations of Social Choice Theory, edited by Jon Elster and Aanund Hylland. Cambridge; Oslo: Cambridge University Press; Universitetsforlaget. Bergsmo, Morten, Cesar Rodriguez Garavito, Pablo Kalmanovitz, and Maria Paula Saffon. 2010. Distributive Justice in Transitions. Oslo: Torkel Opsahl E Publisher, PRIO. Berry, Albert. 2010. “The Economics of Land Reform and of Small Farms in Developing Countries: Implications for Post Conflict Situations” In Distributive Justice in Transitions, edited by Cesar Rodriguez Garavito Morten Bergsmo, Pablo Kalmanovitz, and Maria Paula Saffon. Oslo: Torkel Opsahl Publisher. Brück, Tilman. 2001. “Mozambique: The Economic Effects of the War.” In War and Underdevelopment, edited by Frances Stewart and E. V. K. Fitzgerald. Oxford: Oxford University Press. Coleman, Jules L. 1992. Risks and Wrongs. Oxford: Oxford University Press. Collier, Paul. 1999. “On the Economic Consequences of Civil War.” Oxford Economic Papers no. 51: 168 183. De Greiff, Pablo. 2006a. The Handbook of Reparations. Oxford and New York: Oxford University Press. De Greiff, Pablo. 2006b. “Justice and Reparations.” In The Handbook of Reparations, edited by Pablo De Greiff. Oxford and New York: Oxford University Press. De Greiff, Pablo. 2009. “DDR and Reparations: Establishing Links between Peace and Justice Instruments.” In Building a Future on Peace and Justice, edited by Kai Ambos, Judith Large, and Marieke Wierda. Berlin: Heidelberg Springer Verlag. Deng, Francis. 1996. “Report of the Representative of the Secretary General, Mr. Francis Deng, Submitted Pursuant to Commission on Human Rights Resolution 1995/57. Addendum: Profiles in Displacement: Peru.” E/CN.4/1996/52/Add.1. Economic and Social Council, United Nations. Elster, Jon. 1992a. Local Justice. New York: Russell Sage Foundation. Elster, Jon. 1992b. “On Doing What One Can.” Eastern European Constitutional Review 1: 15 17. Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. Cambridge and New York: Cambridge University Press. Elster, Jon. 2006. “Retribution.” In Retribution and Reparation in the Transition to Democracy, edited by Jon Elster. Cambridge: Cambridge University Press.

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Elster, Jon. 2010. “Land, Justice, and Peace.” In Distributive Justice in Transitions, edited by Morten Bergsmo, Cesar Rodriguez Garavito, Pablo Kalmanovitz, and Maria Paula Saffon. Oslo: Torkel Opsahl Publisher. Elster, Jon. 2012. “Justice, Truth, Peace.” In Transitional Justice, edited by Melissa Williams, Rosemary Nagy, and Jon Elster. New York: New York University Press. Elster, Jon, and Karl Ove Moene. 1989. “Introduction.” In Alternatives to Capitalism, edited by Jon Elster and Karl Ove Moene. Cambridge and Paris: Cambridge University Press. Fitzpatrick, Daniel. 2002a. Land Claims in East Timor. Canberra: Asia Pacific Press. Fitzpatrick, Daniel. 2002b. “Land Policy in Post Conflict Circumstances: Some Lessons from East Timor.” New Issues in Refugee Research, Working Paper No. 58. Fitzpatrick, Daniel, and Susana Barnes. 2010. “The Relative Resilience of Property: First Possession and Order without Law in East Timor.” Law & Society Review 44: no. 2: 205 238. Goodin, Robert. 1991. “Compensation and Redistribution.” In Compensatory Justice, edited by John William Chapman. New York: New York University Press. Goodman, Amy, and Juan González. 2013. “Ten Years Later, U.S. Has Left Iraq with Mass Displacement and Epidemic of Birth Defects, Cancers.” Democracy Now. http:// www.democracynow.org/2013/3/20/ten years later us has left. Grupo de Memoria Histórica. 2010. La Tierra en Disputa, edited by CNRR. Bogotá: Taurus. Guillerot, Julie. 2008. “Reparaciones en la transición peruana: ¿Dónde estamos y hacía donde vamos?” Lima: International Center for Transitional Justice. Hardin, Garret. 1968. “The Tragedy of the Commons.” Science 162: 1243 1248. Humphreys, Macartan. 2003. “Economics and Violent Conflict.” Humanitarian Policy and Conflict Management. Working Paper. Internal Displacement Monitoring Centre. 2009. “Peru: Reparations Begin but IDPs Excluded.” In Internal Displacement Profiles. Geneva: Norwegian Refugee Council. International Crisis Group. 2010. “Managing Land Conflict in Timor Leste.” In Asia Briefing. Brussels: International Crisis Group. Kalmanovitz, Pablo. 2010. “Corrective Justice vs. Social Justice in the Aftermath of War.” In Distributive Justice in Transitions, edited by Morten Bergsmo, Cesar Rodriguez Garavito, Pablo Kalmanovitz, and Maria Paula Saffon. Oslo: Torkel Opsahl Publisher. Kalmanovitz, Pablo. 2011. “Sharing Burdens after War: A Lockean Approach.” Journal of Political Philosophy 19, no. 2: 209 228. Kutz, Christopher. 2004. “Justice in Reparations: The Cost of Memory and the Value of Talk.” Philosophy and Public Affairs 32, no. 3: 277 312. Leckie, Scott. 2008. Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, 2nd ed. Leiden: Martinus Nijhoff Publishers. Leckie, Scott. 2009. Housing, Land, and Property Rights in Post Conflict United Nations and Other Peace Operations: A Comparative Survey and Proposal for Reform. New York: Cambridge University Press. Leckie, Scott, and Christopher Huggins. 2011. Conflict and Housing, Land and Property Rights: A Handbook on Issues, Frameworks, and Solutions. New York: Cambridge University Press. Lipton, Michael. 2009. Land Reform in Developing Countries: Property Rights and Property Wrongs. Abingdon, UK and New York: Routledge.

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Lira, Elizabeth. 2006. “The Reparations Policy for Human Rights Violations in Chile.” In The Handbook of Reparations, edited by Pablo De Greiff. Oxford and New York: Oxford University Press. Lubkemann, Stephen C. 2008. Culture in Chaos: An Anthropology of the Social Condition in War. Chicago: University of Chicago Press. Mendeloff, David. 2004. “Truth Seeking, Truth Telling, and Postconflict Peacebuilding.” International Studies Review 6, no. 3: 355 380. Miller, Zinaida. 2008. “Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice.” The International Journal of Transitional Justice 2: 266 291. Minow, Martha. 2002. Breaking the Cycles of Hatred: Memory, Law, and Repair. Princeton, NJ: Princeton University Press. Nixon, Rod. 2007. “Challenges for Managing State Agricultural Land and Promoting Post Subsistence Primary Industry Development in Timor Leste.” In The Crisis in Timor Leste: Understanding the Past, Imagining the Future, edited by Dennis Shoesmith. Darwin, Australia: Charles Darwin University Press. Nozick, Robert. 1974. Anarchy, State, and Utopia. Oxford: Basil Blackwell. Offe, Claus. 1996. Varieties of Transition: The East European and East German Experience. Cambridge: Polity Press. Perry, Stephen R. 2000. “On the Relationship between Corrective and Distributive Justice.” In Oxford Essays in Jurisprudence: Fourth Series, edited by Jeremy Horder. Oxford: Oxford University Press. Philpott, Charles. 2006. “From the Right to Return to the Return of Rights: Completing Post War Property Restitution in Bosnia Herzegovina.” International Journal of Refugee Law 18, no. 1: 30 80. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999. A Theory of Justice, rev. ed. Cambridge, MA: Belknap Press. Salinas, Yamile, Myriam Hernández, and Pablo Kalmanovitz. 2012. “Restitución de Tierras y Territorios.” In Desplazamiento Forzado: Reflexiones para Salir de la Encrucijada, edited by Manuel José Cepeda. Bogota: Universidad de los Andes, USAid, IOM. Sen, Amartya. 1985. “The Moral Standing of the Market.” Social Philosophy & Policy 2, no. 2: 1 19. Sen, Amartya. 1987. On Ethics and Economics. Oxford and New York: Basil Blackwell. Shelton, Dinah. 1999. Remedies in International Human Rights Law. Oxford: Oxford University Press. Shelton, Dinah. 2005. “The United Nations Principles and Guidelines on Reparations: Context and Contents.” In Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, edited by K. de Feyter, S. Parmentier, M. Bossuyt, and P. Lemmens. Antwerpen: Intersentia. Simmons, John. 1992. The Lockean Theory of Rights. Princeton, NJ: Princeton University Press. Snyder, Jack, and Leslie Vinjamuri. 2003/04. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” International Security 28, no. 3: 5 44. Snyder, Jack, and Leslie Vinjamuri. 2008. “Preconditions of International Normative Change: Implications for Order and Violence.” In Order, Conflict, and Violence, edited by Stathis Kalyvas, Ian Shapiro, and Tarek Masoud. Cambridge and New York: Cambridge University Press.

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Sreenivasan, Gopal. 1995. The Limits of Lockean Rights in Property. New York: Oxford University Press. Steiner, Hillel. 2009. “Responses.” In Hillel Steiner and the Anatomy of Justice, edited by Stephen de Wijze, Matthew H. Kramer, and Ian Carter. New York and London: Routledge. Stepputat, Finn, and Ninna Nyberg Sørensen. 2001. “The Rise and Fall of ‘Internally Displaced People’ in the Central Peruvian Andes.” Development and Change 32: 769 791. Stewart, Frances, and E. V. K. Fitzgerald. 2001. War and Underdevelopment. Oxford: Oxford University Press. Stiglitz, Joseph. 1991. “The Invisible Hand and Modern Welfare Economics.” National Bureau of Economic Research. Working Paper 3641. Thompson, Judith Jarvis. 1980. “Rights and Compensation.” Noûs no. 14 (1): 3 15. United Nations High Commissioner for Human Rights. 2008. Rule of Law Tools for Post Conflict States: Reparations Programmes. New York and Geneva: UN. Vallentyne, Peter. 2009. “Responsibility and Compensation Rights.” In Hillel Steiner and the Anatomy of Justice, edited by Stephen de Wijze, Matthew H. Kramer, and Ian Carter. New York and London: Routledge. Vallentyne, Peter, and Hillel Steiner. 2000a. Left Libertarianism and Its Critics: The Contemporary Debate. Basingstoke, UK and New York: Palgrave. Vallentyne, Peter, and Hillel Steiner. 2000b. The Origins of Left Libertarianism: An Anthology of Historical Writings. Basingstoke, UK New York: Palgrave. Vermeule, Adrian. 2012. “Reparations as Rough Justice.” In Transitional Justice, edited by Melissa Williams, Rosemary Nagy, and Jon Elster. New York: New York University Press. Waldron, Jeremy. 2012a. “Property and Ownership.” In Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta. http://plato.stanford.edu/archives/spr2012/ entries/property/. Waldron, Jeremy. 2012b. The Rule of Law and the Measure of Property, The Hamlyn Lectures. Cambridge: Cambridge University Press. Wood, Elisabeth Jean. 2008. “The Social Processes of Civil War: The Wartime Transformation of Social Network.” Annual Review of Political Science 11: 539 561. Wood, Elisabeth Jean. 2011. “Agrarian Reform, Land Occupation, and the Transition to Democracy in El Salvador.” In Distributive Justice in Transitions, edited by Morten Bergsmo, Cesar Rodriguez Garavito, Pablo Kalmanovitz, and Maria Paula Saffon. Oslo: Torkel Opsahl E Publisher.

part vi THE SOCIAL SCIENCES

11 Jon Elster and the Social Sciences* Daniel Little

Jon Elster has made important contributions to several fields, including rational choice theory, political science, and philosophy. The breadth and depth of his writings are striking in a time of high specialization; he is read and discussed by political scientists, economists, and philosophers. His work is difficult to summarize in a slogan, but virtually all of it has to do with problems of rational choice explanation in social science, much of it has a methodological dimension, and it is generally informed by a broad and deep acquaintance with relevant literatures in political science, philosophy, economics, and psychology. In what follows, I will discuss Elster’s contributions to a series of problem areas: the foundations of the theory of rationality, social welfare theory, philosophy of social science, and analytical Marxism. Elster’s writings have had great impact on the philosophy and theorizing of the social sciences. Elster has made possible a deeper understanding of a variety of important issues in a handful of disciplines. And he has drawn attention to important conceptual issues in the foundations of social theorizing. Particularly valuable is his contribution to what might be called a “theory of the actor” – a more developed understanding of the motives and reasoning processes that lead real human beings to behave as they do in social settings. The fertility of his mind combined with the depth and range of his work have combined to make a singularly important contribution to the social sciences.

foundations of rational choice theory Much of Elster’s work involves explication of the central assumptions of the theory of rationality. Here is how he puts this theory in Reason and Rationality: * This essay incorporates material published earlier in Little, “Jon Elster.” In New Horizons in Economic Thought, edited by Warren Samuels (Cheltenham, UK; Northampton, MA: Edward Elgar Publishing, 1992).

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“The rational actor is one who acts for sufficient reasons. These reasons are the beliefs and desires in light of which the action appears to be appropriate in a sense that I shall discuss at length. The idea of rationality is often but wrongly related to that of the actor’s private good or self-interest in the moralist’s sense.”1 Much of Elster’s thought has taken the form of efforts at explicating this definition, and discovering some of the complexities of mental life that complicate this picture of human action, within what he calls the theory of “imperfect rationality.” Economists and decision theorists tend to adopt a thin and unnuanced conception of rationality, in which rational choice is strictly characterized by fixed preferences, cardinal utilities, subjectively construed probabilities, and conformity to appropriate axioms of choice. Call this the “thin” theory of rationality. This theory makes it possible to represent problems of choice in a highly compact and formal manner, and to arrive at provable results in decision theory, game theory, and microeconomics. Many observers now agree that the thin theory is a poor description of actual human decision-making behavior.2 Elster shows, however, that there are also unresolved conceptual problems contained within this theory. And he demonstrates that it is desirable to provide a more elaborated account of rational decision making if rational choice theory is to be of much use in understanding social behavior in all but the most narrowly defined market contexts. What Is Rationality? Before we can consider nonstandard cases of rational choice, we need a more detailed account of what we understand by rational behavior in the clear cases. Elster’s work contains a number of discussions of this central topic. In Ulysses and the Sirens, he analyzes rational choice as the outcome of a two-step process: To explain why a person in a given situation behaves in one way rather than in another, we can see his action as the result of two successive filtering processes. The first has the effect of limiting the set of abstractly possible actions to the feasible set, i.e. the set of actions that satisfy simultaneously a number of physical, technical, economic and politico legal constraints. The second has the effect of singling out one member of the feasible set as the action which is to be carried out.3

This is a useful preliminary statement of the concept of rationality. It serves well as a framework in terms of understanding the fields of microeconomics, game theory, and the like, for these fields concentrate on the techniques of optimization through which an agent can select the optimal choice among the feasible set 1 2

3

Elster, Reason and Rationality. See work by Kahneman, Slovic, and Tversky, Judgment under Uncertainty; Simon, “From Substantive to Procedural Rationality”; Simon, Reason in Human Affairs; and Cherniak, Minimal Rationality, for arguments to this effect. Elster, Ulysses and the Sirens, 76; see also, Elster, The Cement of Society, 13 14.

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(the second filter). But the definition also sheds light on the importance of social and natural constraints on action (the first filter). This feature of rational action implies that there may be patterns of choice that can be explained, not as the result of optimizing deliberation, but as the result of a particular set of institutional constraints. Economists are inclined to emphasize the importance of optimization within stylized environments (markets); whereas political scientists often focus on variations in the environment of choice as the critical variable underlying patterns of social behavior. Elster’s characterization of rationality leaves room for both forms of social explanation.4 Turn now to problems deriving from foundational assumptions of rational choice theory. Perhaps the cornerstone of rational choice theory is the theory of preference. Individuals are assumed to have complete, consistent preference orderings that can in turn be represented by cardinal utility functions through von Neumann lotteries on pairs of alternatives. In the thin theory, preferences are taken as exogenous and fixed; the theory is designed to answer the question, How should I act given this set of preferences? But Elster shows that a number of problems arise in interpreting the theory of preference. Endogenous Change of Preference The thin theory of rationality takes the agent’s preferences as given or exogenous; microeconomics and decision theory have to do with optimization given a particular preference ranking of alternatives. But what if my actions today can lead to a shift in my preferences tomorrow? This expands the problem of choice dramatically, for now I must deliberate, not only over how best to achieve my current preferences, but what preferences to cultivate for tomorrow. Are there rational grounds for making such choices?5 Suppose my preference structure today is this: I place very high value on becoming one of the world’s ten best chefs. All other careers are pale in comparison. If this is a fixed preference (or at least a circumstance out of my control), then the options available to me are limited to the means I might choose to pursue this goal (chef school, a sous-chef position in a Paris restaurant, etc.). Now suppose that my options are extended by allowing the possibility that I might voluntarily change my preferences. I can now choose between pursuing my old preferences or undertaking a course of behavioral therapy that will rid me of this demanding ambition and establish a new and more attainable goal. The conceptual problem is this: On what basis should I deliberate about this choice? It cannot be on the basis of my existing preference structure, since that is 4

5

A more comprehensive statement of Elster’s conception of rationality occurs in chapter 1 of Elster, Sour Grapes. This chapter serves both as an extensive introduction to the central ideas of rational choice theory and a thoughtful posing of a number of current problems in the theory of rational choice. See also his introduction to Rational Choice. Elster discusses this problem in Elster, “Imperfect Rationality,” (in Ulysses and the Syrens), 76 85.

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what is up for grabs. We might attempt to deal with this problem through recourse [to] the idea of a second-order preference ranking: a preference ranking of preference rankings.6 In this case, we might reason that it is preferable to adopt a life plan (first-order preference structure) in which the chief goals are reasonably attainable, over one in which the prospects of success are vanishingly small. The central point, however, is clear: the thin theory of rationality lacks resources for resolving this problem of choice. The problem of choosing to change one’s preferences or utility function cannot be reduced to a problem of utility maximization; other reasons must be brought into play. Imperfect Rationality Turn now to problems of imperfect rationality. Elster has written a great deal on the issue of the role of self-imposed constraint within rational choice; this is the point of the parable of Ulysses and the sirens. Here the problem derives from the fact that real decision makers are less than completely regulated by rationality. Thus we suffer from weakness of the will (an inability to execute a decision we have determined to be for the best, all things considered), emotion, impulsiveness, habit, and self-deception. These failures of rationality raise two sorts of problems. First, we need to have a more adequate conceptual analysis of the features of human practical cognition that interfere with reason. How is selfdeception possible, since it seems to involve believing what I know to be false? Does weakness of the will derive from factors outside of rationality, or is it a feature of the process of rational deliberation itself?7 Second, we need to consider another second-order problem of rational choice: How can the rational agent choose to act in the present so as to minimize the consequences of these features of imperfect rational capacity in the future? Elster contributes to both topics, but particularly useful is his discussion of the latter under the general topic of the problem of Ulysses and the sirens. It is possible for rational agents to anticipate failures of rationality in the future and arrange constraints on their future choices that will guarantee the behavior selected today as optimal. Suppose that I undertake a plan for tomorrow that I judge today to be best, all things considered: I will arise, eat breakfast, and spend the day completing an important professional task. Suppose I also anticipate, however, that the day will be fine, the sand and sun will beckon, and that I will be irresistibly drawn to the beach – with the result that the task will remain unfinished. Finally, suppose that I prefer that the task should be finished to the pleasures of a day on the beach. 6

7

“Rational Fools” in Sen, Choice, Welfare, and Measurement; Harsanyi, “Morality and the Theory of Rational Behavior.” Elster discusses self deception in Elster, Ulysses and the Sirens, 157 179; in Elster, Sour Grapes, 141 166. He treats weakness of the will in a number of places: in Elster, Ulysses and the Sirens, 37 47, in Elster, Solomonic Judgements, 17 19, and in Elster, “Weakness of the Will and the Free Rider Problem.”

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Under these circumstances, what actions are available to me today to see that my will is accomplished tomorrow? Elster argues that a central resource available is that of precommitment – creating a constraint on my future actions that will compel me to act in the future as I decide today.8 In this example I might break the legs on my beach chair, knowing that the prospect of a day on the beach without a chair will be entirely less attractive to me tomorrow than it would in the presence of the chair. If I were perfectly rational, such stratagems would be unneeded; if I were entirely immune to the call of reason, they would be unavailable.

theory of social choice Turn now to Elster’s contributions to the theory of social choice. Elster has written frequently on topics falling broadly within the theory of social choice broadly construed; here I will briefly describe several topics of interest. A good example of Elster’s contributions in this area may be found in his introduction (with Aanund Hylland) to Foundations of Social Choice Theory.9 In just a few pages, Elster clarifies the original motivations of the theory of social choice (the practical problems of designing voting schemes and aggregating social welfare).10 He illustrates some of the connections between the theory of social choice and other topics – for example, distributive justice and game theory – and he focuses attention on several conceptual problems lying at the heart of the theory – for example, the assumption that preferences are exogenous to processes of public decision making or the problem of defining the boundaries of a given electorate.11 A good illustration of Elster’s contributions to the theory of social decision making is his extensive analysis of concrete institutions through which democracies allocate noneconomic benefits and burdens (organs for transplantation, college admissions, and job layoffs). In Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens,12 he examines a host of institutions and rules through which such collective decisions are made in North America and Western Europe. His discussion brings together normative and analytical perspectives on the fairness and efficacy of various alternatives. His basic view is that there is no general basis for explanations of the systems that are chosen; instead, a substantial degree of contingency exists in each such system. Designers of systems of rules of allocation often have reasonable goals and expectations about how the rules should work, and yet it is also the case that the precise configuration of rules is itself the object of political competition among interested 8 9 10 11 12

Elster, Ulysses and the Sirens. Elster and Hylland, Foundations of Social Choice Theory. Ibid., 2 3. Ibid., 6 8. Elster, Local Justice.

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parties. So we have no reason to expect that the resulting sets of rules will be optimal from the point of view of either fairness or effectiveness.13 Social Decision Processes and Individual Preferences As we saw in the first section, Elster is interested in the problem of endogenous preference change. He believes that this problem recurs in the case of social decision making, giving rise to a serious foundational problem in social choice theory. The central problem of social choice theory is usually formulated along these lines: Given a set of individuals and fixed preference rankings, what decision rule or voting scheme can be put forward to arrive at a consistent social preference ranking? And what social preference ranking emerges from these individual preferences? In “The Market and the Forum,” Elster argues that this formulation misses a crucial element of the political process within a democracy: the fact that individual preferences are formed through the process of political decision making itself.14 So individual preferences are not prior or exogenous; instead, they take form through the process of political discussion and debate.15 And Elster takes this fact to cast some doubt on the adequacy of social choice theory: the theory abstracts from a feature of social deliberation that is essential to understanding the process of social decision making. Is this a telling objection? Perhaps less than it appears. Elster is right in drawing attention to the ways in which preferences are shaped through debate. But once we acknowledge this fact and admit to an extended process of discussion and persuasion, we are once again confronted with the same problems that first engaged Arrow and others. At some point, it is necessary to aggregate individual preferences into a single social preference ranking, and at this point the original problem of social choice arises once again. This point emerges most clearly if we consider a comparison that Elster does not consider: the contrast between a formal social choice function and Rawls’s conception of wide reflective equilibrium.16 In each case we are attempting to characterize a rational process of collective decision making. In the former case, however, individual beliefs and preferences are fixed, and the sole problem is how to generate a consistent social choice. In the latter case, we are to suppose that individuals retain an open mind concerning their beliefs and preferences as they consider arguments, moral reasons, and alternative factual beliefs advanced by other citizens. The group reaches individual-level equilibrium when all relevant considerations (moral, theoretical, factual) have been voiced and each individual has settled on a coherent set of preferences and beliefs. We may imagine that each individual has altered his or her beliefs and preferences in various ways. Now, 13 14 15 16

Ibid., 184. Elster, “The Market and the Forum,” 106 112. Here Elster draws on Jurgen Habermas’s theory of the ethics of discourse. John Rawls, A Theory of Justice.

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however, we are faced anew with the problem of social choice: How can these beliefs and preferences be aggregated to a consistent collective preference ranking? There is nothing in this process that allows us to conclude that unanimity will emerge through debate; instead, it is perfectly consistent, even probable, to suppose that individuals will still disagree in their rankings of social alternatives. So the point that beliefs and preferences are themselves affected by the process of social deliberation, does not alter the fact that some rule of aggregation or other must be chosen to move from individual preferences to social choice. It may be noted that this discussion raises the problem of path dependency, at two levels. First, to the extent that citizens’ preferences are affected by the character and order of arguments to which they are exposed during an extended period of debate, there is no reason to expect a unique equilibrium set of individual preference rankings; rather, different equilibria result from different discussion pathways. And second, different schemes of preference aggregation (social choice rules) may lead to different social preference rankings. On this view, then, problems of social choice have large stretches of indeterminacy (a conclusion that is distressingly familiar from our ordinary experience of political and group decision making). Alternatives to Capitalism Are there alternatives to capitalism? This question acquired new significance following the collapse of the bureaucratic socialist economies of Eastern Europe. It is clear that state-owned and managed enterprises have serious economic defects – incentive problems, inefficient patterns of investment, misallocations of resources across industries, and insufficient production of consumer goods. Do these defects entail that capitalism is the only economically viable form of economic organization for modern industrialized societies, or are there alternative institutions that are more democratic and less exploitative than those of contemporary industrialized capitalism, and that achieve comparable levels of productivity and efficiency? This topic has cropped up several times in Elster’s career. One important instance is the work he brought together in Alternatives to Capitalism.17 Here is how Elster and Moene put the point in their introduction: Capitalism actually existing capitalism appears in many respects to be an ugly, irrational, wasteful way of organizing the production and distribution of goods and services . . . . Five of the essays in the present volume discuss whether there could be alternatives to presently existing capitalism other than central planning. Could, for instance, central planning be tempered by the market, or capitalism tempered by planning?18

17 18

Elster and Moene, Alternatives to Capitalism. Ibid., 1 2.

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So the core questions that arise here are these: Are there workable alternatives concerning the coordination of labor and the management of property that work better than laissez-faire capitalism and wage labor? And what does “better” mean in this context? A partial answer to the “better” question might go along these lines: we want workable institutions that better embody equality and self-control than an unregulated market. “Workable” means “reasonably efficient and productive,” and self-control means something like “shop floor self-determination.” One alternative economic institution that is considered in detail in the volume is workers’ cooperatives – systems where the cooperative owns the capital of the enterprise and democratic rules of decision making permit cooperative members to define work rules and income distributions. Here is how Elster and Moene introduce the idea of a cooperative in the introduction: What is a cooperative? The answer to the question might seem obvious: A cooperative is a firm in which the workers own the means of production and have full control over all economic decisions. Yet the answer, as it stands, is ambiguous and incomplete. It fails to capture the variety and complexity of existing cooperatives.19

A more complete and differentiated taxonomy of cooperatives is needed, since variations in institutional design can have very large consequences for the behavior of the overall institution. Here are some of the ways that cooperatives vary in the historical record: ! ! !

! ! !

Full ownership by workers or just workers’ control over decisions?20 Equal ownership rights or stratified ownership rights?21 Shop-floor democracy for all workers, or professional management team selected by the workers?22 Static business environment or rapidly changing business environment?23 Large firms or small firms?24 Production process that permits high/low level of monitoring by other workers.25

Elster and Moene suggest that these variations of internal design and external business and technical environment make a large difference to the effectiveness of cooperative firms. Elster discusses the viability of worker-owned cooperatives in “From Here to There; or, If Cooperative Ownership Is So Desirable, Why Are There So Few Cooperatives?” Here his central conclusion is that the usual complaints about 19 20 21 22 23 24 25

Elster and Moene, Alternatives to Capitalism, 22. Ibid. Ibid., 24. Ibid. Ibid., 27. Ibid. Ibid.

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the inefficiency of worker-owned cooperatives are not compelling, and that the demands of justice give a strong reason for an economic democracy to experiment with this form of economic organization.26 Elster also considers a major institutional reform within capitalism: the creation of a state-backed right to work. “A legally enforceable right to work would be part of the broader spectrum of rights that make up the modern welfare state.”27 Elster discusses the concept of a right to work within the context of current discussions of rights more generally, and he outlines a Marxian rationale for emphasizing the positive value of work, based on the ideal of self-realization through work. Meaningful work is a prerequisite for selfrespect, on this account.28 This latter point, however, yields a normative argument against institutionalizing a right to work: the fact that the state must heavily subsidize one’s work undermines the satisfaction and self-respect that one can derive from it.29 And Elster further concludes that the economic constraints any economy is likely to face make a guaranteed right to work impossible. For both economic and moral reasons, then, Elster argues that it is better on balance not to institutionalize a legal right to a job.30

philosophy of social science Turn now to another large area in which Elster has made an important contribution: the philosophy of social science. The philosophy of social science has changed a great deal in the past twenty-five years, and Elster’s writings have contributed a good deal to the progress in this area. This field is concerned with problems in the logic and methodology of the social sciences: What is a good social explanation? How should explanations of social processes relate to facts about individuals? Is there a distinctive social science method, or should the social sciences emulate the natural sciences? How do empirical methods constrain social hypotheses? Through the early 1970s, this field was dominated by writings that were largely aprioristic and uninformed by much current social science research. Since that time, however, philosophers have increasingly recognized the need for a close acquaintance with extensive examples of social science inquiry so that the philosophy of social science will bear a recognizable relationship to the empirical work currently being done on social phenomena. Elster has written extensively on the philosophy of social science in the past ten years, and his writings have had a substantial effect. 26 27 28

29 30

Elster, “From Here to There,” 111. Elster, “Is There (or Should There Be) a Right to Work?” 55. Elster returns to this theme in “Self Realisation in Work and Politics,” in Elster and Moene, eds., Alternatives to Capitalism, 127 158. “Is There (or Should There Be) a Right to Work?” 74. Elster raises related issues in his discussion of Krouse and McPherson’s “A ‘Mixed’ Property Regime” conception of a “property owning democracy” in Elster, “Comments on Krouse and McPherson, ‘A “Mixed” Property Regime.’ ”

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The Importance of Social-Science Practice In Explaining Technical Change, Elster offered a novel approach to the study of the philosophy of social science.31 Instead of posing a series of a priori questions about the social sciences in general, Elster organized his discussion around an important instance of social inquiry – the explanation of the incidence and diffusion of technical change – and undertook to extract methodological lessons from several empirical research traditions. This approach involved a “case study” method for the philosophy of social science, and Elster was among the first to employ this method in the philosophy of social science. As Elster puts the point, “empirical work conducted in isolation from the philosophy of science may be no worse for that, whereas the philosophy of science atrophies if it is not in close and constant touch with the development of current thinking on empirical matters.”32 (Philosophers of biology had adopted this perspective in the 1970s, but philosophers of social science were slow to follow.) The resulting book is successful on several levels. It provides a very useful exposition of some of the central ideas in the philosophy of social science – in particular, the relation between causal, functional, and intentional explanation. It offers an extensive development of Elster’s important criticisms of functional explanation in social science (to be discussed shortly). And, substantively, it presents and discusses the main theories of technical change clearly and insightfully, with the effect of clarifying and enriching future debate on this issue. Linked with this view of the importance of the actual practice of social scientists is Elster’s insistence on what may be called “methodological pluralism” in the social sciences. Against the idea that there should be one comprehensive social theory, or one coherent set of theoretical ideas that are used to ground all social explanations, Elster offers the metaphor of a toolbox. A good toolbox consists of a number of different implements, no small number of which will do to replace all the rest. Rather, it is the diversity of the tools that constitutes the real utility of the collection. Likewise, Elster suggests that the social sciences need to resort to a large collection of theoretical tools – models, modes of analysis, quantitative techniques, and the like – in order to explain diverse social phenomena. There is a tendency within philosophy to try to reduce complexity to simplicity; Elster refreshingly affirms complexity and casts doubt on the goal of unification of the social sciences. His book Nuts and Bolts for the Social Sciences puts the case clearly and well: in order to explain social phenomena, it is necessary for the investigator to have recourse to a variety of theoretical tools.33 These tools may then be used to construct accounts of the mechanisms that underlie various social processes. Rational choice theory and game theory represent one section of the box; but sociologists’ analysis of the workings of

31 32 33

Elster, Explaining Technical Change. Ibid., 11. Elster, Nuts and Bolts for the Social Sciences.

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normative systems, cognitive psychologists’ accounts of inference and illusion, even the psychoanalyst’s treatment of self-deception constitute other – and nonreducible – sections of the box as well. Methodological Individualism Elster’s most important substantive contribution to the philosophy of social science is his renewed defense of the doctrine of methodological individualism.34 His position on methodological individualism has also had substantial influence on the emerging literature on “analytical sociology” associated with Peter Hedström, Peter Bearman, and others.35 Here is how Peter Hedström describes analytical sociology, and it is worth quoting here because of the important role he attributes to Elster in this new approach: Although the term analytical sociology is not commonly used, the type of sociology designated by the term has an important history that can be traced back to the works of late nineteenth and early twentieth century sociologists such as Max Weber and Alexis de Tocqueville, and to prominent mid twentieth century sociologists such as the early Talcott Parsons and Robert K. Merton. Among contemporary social scientists, four in particular have profoundly influenced the analytical approach. They are Jon Elster, Raymond Boudon, Thomas Schelling and James Coleman.36

Elster describes methodological individualism in these terms: “By [methodological individualism] I mean the doctrine that all social phenomena – their structure and their change – are in principle explicable in ways that only involve individuals – their properties, their goals, their beliefs and their actions.”37 Here is how Lars Udehn describes Elster’s version of methodological individualism: Elster is not only a proponent of rational choice, but of methodological individualism as well, and he seems to share the common presumption that the two are inseparably linked. By “methodological individualism,” Elster means “the doctrine that all social phenom ena their structure and their change are in principle explicable in ways that only involve individuals their properties, their goals, their beliefs and their actions. Methodological individualism thus conceived is a form of reductionism.38

Methodological individualism is really two doctrines: a claim about social entities and a claim about social explanations. The ontological thesis denies that there are social entities independent from individuals; the thesis about explanation holds that assertions of explanatory relations among social facts need to be reduced to explanatory relations among individual-level facts. To explain a social phenomenon, it is not sufficient to assert causal or functional 34 35 36 37 38

Earlier exponents of methodological individualism include J. W. N. Watkins and Karl Popper. Hedström, Dissecting the Social; Demeulenaere, Analytical Sociology and Social Mechanisms. Hedström, Dissecting the Social, 6. Elster, Making Sense of Marx, 5. Udehn, Methodological Individualism, 311.

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regularities among social entities. Rather, it is necessary to provide a detailed account of the mechanisms at the individual level by which the causal properties or functional needs of the social system are imposed on other social institutions and practices. (That is, it is necessary to provide an account of the microfoundations of a given social process.)39 Thus macro-explanations are insufficient unless accompanied by an analysis at the level of individual activity that reveals the mechanisms giving rise to the pattern to be explained. This line of argument represents a sophisticated form of methodological individualism, and unlike earlier arguments for methodological individualism, it has the merit of being informed by knowledge of a variety of examples of social explanation. Elster’s commitment to methodological individualism aligns closely with his emphasis on the utility of the tools of rational choice theory in social explanation. Methodological individualism forces the social scientist to turn to the individual-level processes that produce social outcomes; and rational choice theory offers a general account of what those individual-level processes are. Rational choice theory thus functions as a research program for social science: to explain social outcomes as the aggregate result of individuals’ calculating efforts to pursue their interests given their beliefs about the environment of choice. This program is plausible because human beings are purposive beings capable of forming beliefs and choosing actions on the basis of their goals and beliefs. This is not to say that human beings are perfectly or always rational; in fact, much of Elster’s effort is spent analyzing failures of rationality. But it does imply that rational choice theory provides a common starting point for analysis of social phenomena. The rational choice approach generally gives short shrift to the workings of norms and values in human action. However, much of Elster’s more recent work gives greater attention to the role of norms and values in motivating or constraining individual choice. Whereas some social scientists within a rational choice framework have sought to minimize the role of norms and values,40 Elster has come to recognize that reference to normative systems has a place within an individualistic theory of social action.41 This is a step forward in the direction of a more empirically adequate theory of individual motivation, and one that can eventually be deployed to produce more complex models of social processes that reflect both prudential and normative motivations. But Elster rightly emphasizes that it is perfectly consistent for an individualist theory to introduce social norms into its explanations;42 contrary to Durkheim’s familiar 39

40 41

42

See Roemer, “Methodological Individualism and Deductive Marxism,” and Van Parijs, “Why Marxist Economics Needs Microfoundations” for arguments that Marxist explanations require micro foundations. Popkin, The Rational Peasant. Other rational choice attempts to incorporate norms into the model include Margolis, Selfishness, Rationality, and Altruism; “Rational Fools” in Sen, Choice, Welfare, and Measurement; Sen, On Ethics and Economics; and Levi, Hard Choices. Elster, The Cement of Society, 105.

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view that norms have a supra-individual status, it is plain enough that norms can only be embodied in the actions, sanctions, gestures of approval and disapproval, and so on of particular individuals. A particularly successful application of the doctrines of methodological individualism may be found in Elster’s critique of functional explanation in social science.43 Social scientists have often been inclined to offer functional explanations of social phenomena – explanations of social features that explain the presence and persistence of the feature in terms of the beneficial consequences the feature has for the ongoing working of the social system as a whole. It might be held, for example, that sports clubs in working-class Britain exist because they give working-class men and women a way of expending energy that would otherwise go into struggles against an exploitative system, thus undermining social stability. Sports clubs are explained, then, in terms of their contribution to social stability. This type of explanation is based on an analogy between biology and sociology. Biologists explain traits in terms of their contribution to reproductive fitness, and sociologists sometimes explain social traits in terms of their contribution to “social” fitness. However, Elster shows that the analogy is a misleading one because there is a general mechanism [that] establish[es] functionality in the biological realm that is not present in the social realm. This is the mechanism of natural selection, through which a species arrives at a set of traits that are locally optimal. There is no analogous process at work in the social realm, however, so it is groundless to suppose that social traits exist because of their beneficial consequences for the good of society as a whole (or important subsystems within society). This discussion shows that Elster’s defense of methodological individualism has been an important corrective to some tendencies within the social sciences. However, Elster has sometimes been accused of having an excessively individualist approach to social explanation (e.g., by Andrew Levine in his review of Making Sense of Marx).44 Elster holds that good social science explanations need to have micro-foundations, and putative explanations that lack such foundations must be revised or rejected. On the whole this is a salutary recommendation for the social sciences; in too many instances it is possible to find sociologists or historians explaining outcomes as the result of group interests, latent functions, or other ungrounded social processes. However, I believe that Elster’s formulation of the doctrine of methodological individualism is overly restrictive; there is a class of satisfactory social explanations that does not require micro-foundations as a condition of adequacy (though it is certainly a reasonable research goal to attempt to provide such foundations). If this criticism is convincing, then Elster is guilty of the sort of overgeneralization about social science method that his toolbox metaphor would reject: he is 43

44

Elster, Explaining Technical Change, 49 68; Elster, Ulysses and the Sirens, 28 35; Elster, “Marxism, Functionalism, and Game Theory.” Levine, “Review of Making Sense of Marx.”

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extending a perfectly legitimate but partial methodological strategy to a comprehensive requirement on all social explanation. The macro-explanations whose adequacy I defend fall generally within the category of causal-structural explanations. The claim that the alliance structures within which the European powers were located between 1912 and 1914 was a proximate cause of the outbreak of war is an instance of such an explanation.45 In such explanations, the social scientist asserts a causal relation between two or more elements of social structure, and offers empirical support for this causal hypothesis that depends on historical evidence pertaining to the patterns or regularities of these structures across a number of cases.46 How are such hypotheses to be empirically evaluated? First, comparative study of a set of cases permits a direct empirical test of causal hypotheses of this sort. A comparative study identifies a small class of relevant cases; it specifies the social variables under scrutiny (state structure, land tenure relations, existence of elite parties, etc.), and it determines whether there are credible causal sequences among these variables in the several cases. Second, it is possible to provide qualitative analysis of the social mechanisms that lead to changes of state in the social variables. For example, it is perfectly credible that an overextended state will have more difficulty suppressing banditry on the periphery than one in the fullness of its powers; we can easily sketch in the institution-level causal mechanisms that lead to this outcome. Causal-structural explanations, then, represent examples of causal analysis that depend only on the relations between various elements of social structure – without identifying the individual-level processes that give rise to these structural relations. In defending the adequacy of this sort of structural explanations, I do not mean to suggest that such explanations cannot be provided with microfoundations; in fact I believe that they can.47 Rather, the methodological point is that the social scientist is not obliged to provide such foundations as a minimal condition of adequacy; it is possible to have the right sort of empirical support for a causal hypothesis about the connection between two or more elements of social structure, so that it is not necessary to derive this connection from underlying individual-level processes.48

45 46

47

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Williamson, “The Origins of World War I.” Theda Skocpol’s comparativist study of the causes of successful revolution is a well known example of such explanations. Skocpol asks what explains the success of revolutions in a small number of cases and the failure of revolutionary movements in many more cases; her explanation is couched at the level of such structural variables as administrative competence, land tenure systems, and form of military organization. For consideration of this point in application to Skocpol’s argument, consider Michael Taylor’s valuable essay “Rationality and Revolutionary Collective Action.” For further discussion of the shortcomings of strong reductionism or individualism in social science, see my Varieties of Social Explanation and more recent arguments in favor of “meso level” social causes (Little “Analytical Sociology and the Rest of Sociology”; Little, “Explanatory Autonomy and Coleman’s Boat.”)

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Social Mechanisms Elster was one of the early proponents of a view of social explanation that has become increasingly prominent in sociology and philosophy of social science: the causal mechanisms approach.49 Like methodological individualism, this topic is a founding premise of the emerging movement of analytical sociology described in the previous section. The causal-mechanisms approach casts doubt on the standard regularity-based interpretation of causation as an expression of universal regularities. Instead, it focuses on medium-range mechanisms that recur in a variety of settings. We explain an outcome or pattern by identifying the chief causal mechanisms that bring it about. Here is one of Elster’s many descriptions of the idea of a causal mechanism: “Roughly speaking, mechanisms are frequently occurring and easily recognizable causal patterns that are triggered under generally unknown conditions or with indeterminate consequences.”50 The causal-mechanisms approach has emerged as the most compelling way of thinking about social explanation, given the heterogeneity and multidimensional nature of the social world. As Elster insists on many occasions, the social world does not present us with the kinds of exceptionless regularities that have often provided the foundations of explanations in the natural sciences. Identifying causal mechanisms allows us to arrive at satisfying explanations of outcomes without needing to appeal to exceptionless regularities. So Elster’s early championing of this idea has served as an important contribution to the social sciences. However, the specifics of Elster’s definition of a causal mechanism have generated an ongoing debate. Johannes Persson argued that Elster’s definition results in paradox: a causal-mechanisms explanation abruptly loses its explanatory status when we provide more information about the initiating conditions.51 Elster’s definition includes epistemic conditions: “unknown conditions” and “indeterminate consequences.” If these are criterial for a stipulated connection’s being a mechanism, then Persson is right in his critique of Elster. A mechanism is partly constituted by facts in the world and partly by our knowledge of facts in the world. However, it seems better to separate the ontological from the epistemic in our definition of a mechanism. Elster would be better served by maintaining a realist definition of the mechanism, and reserve the fact of there being gaps in our knowledge of initiating conditions and consequences as a meta-observation about the uncertainties of the social world. Elster’s error was to import into the conceptual specification of a mechanism, conditions that properly speaking pertain to the pragmatics of our use of mechanisms in explanations in the context of incomplete knowledge. If we separate clearly between the mechanism and what

49

50 51

Mahoney, “Beyond Correlational Analysis”; Little, The Scientific Marx; Little, “Causal Mechanisms in the Social Realm.” Elster, “A Plea for Mechanisms,” 45. Persson, “Mechanistic Explanation in Social Contexts.”

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we know about it, we do not get the paradoxical consequence that Persson draws out. But this would require a realistic interpretation of causal mechanisms.52 Reflections on the Social Science Founders One thing that distinguishes Elster from many other philosophers and theorists of the social sciences is his deep engagement with the ideas of figures in the history of social thought. This is true of his efforts to make sense of Marx (discussed in the next section). But it is also true of his consideration of a number of other important figures, including Alexis de Tocqueville and Jeremy Bentham. Elster plainly rejects the idea, common in the natural sciences, that we have nothing to learn from the founders of the scientific disciplines. In Alexis de Tocqueville: The First Social Scientist, Elster considers the important question of whether Tocqueville was in fact one of the founders of the discipline of sociology.53 Elster demonstrates a deep familiarity with Tocqueville’s writings, though he focuses on L’Ancien regime and Democracy in America in this work. The textual detail of his discussion is remarkable. At the same time, Tocqueville is not really a theoretical writer, so it is necessary to infer his theoretical ideas from the comments he makes about historical events and actors. Elster is forced to engage in a fair amount of rational reconstruction of the theories that underlay a variety of Tocqueville’s observations about the politics of France and America. There are several significant elements of Elster’s interpretation of Tocqueville. Elster believes that the most important feature of Tocqueville’s claim to being a sociologist is his consistent search for causes. Significantly for contemporary debates about social causation, it is Elster’s view that Tocqueville operated on the basis of a conception of social explanation that depended on social mechanisms rather than general laws. Among the mechanisms that Elster focuses on are those that surround preference formation. This question is plainly key to having a theory of political psychology: Why do people make the choices that they do? He singles out three distinct psychological mechanisms to which Tocqueville refers: the spillover effect, the compensation effect, and the satiation effect.54 Preference formation is a topic that has consistently interested Elster, and he spends much time on the question in his early writings, including the formal question of time preferences. The other key to Elster’s analysis of Tocqueville is his focus on features of the actor – reason, interests, and passions, or what Tocqueville refers to as “habits of the heart.” Elster does not put his views in these terms, but much of what he has to say about Tocqueville can be put in the category of piecing together Tocqueville’s theory of the actor: why people behave as they do. His discussions of preferences, 52 53 54

Little, “Social Mechanisms and Scientific Realism.” Elster, Alexis de Tocqueville. Ibid., 12 ff.

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individualism, norms, and passions all fall in the domain of a theory of the actor. Elster is particularly interested in Tocqueville’s treatment of the passions. He specifically discusses envy, fear, hatred, enthusiasm, contempt, and shame as emotions (passions) that often drive behavior in opposition to both interests and reason. Key to action is interest, and Tocqueville has complicated things to say about this subject. What is “enlightened self-interest”? Elster finds that Tocqueville contrasts “egoism” with “enlightened self-interest” as well as with altruism. Egoism means an exclusive attention to one’s own interests in the moment, so it is opposed both to altruism (concern for the interests of others) and foresight (concern for one’s future interests).55 Elster’s treatment of Tocqueville is of interest in part because of its direct relevance to the explication of Tocqueville’s thought. But even more interesting is what it shows about Elster’s own thinking about sociological investigation. It is plain that Elster favors an actor-centered sociology. In some writings he explicitly describes his view as methodological individualism. Here the approach is somewhat more tolerant of schemes of explanation that are not directly reductionist. But Elster’s view of the social world is consistently focused on the varieties and sources of human action, and the ways that these features of action compound into unexpected social outcomes. Elster’s treatment of Jeremy Bentham in Securities against Misrule is focused on a small number of theoretical issues in public decision theory.56 Elster considers Bentham to be a philosopher who has been badly underrated. Bentham’s core goal was to work out features of institutional design that would make corruption and misuse of power least likely in the decision-making processes of a democracy. How can we design practical, effective, and fair institutions for making the basic decisions that are needed within a democratic government? This is, of course, one of the oldest questions in democratic theory; but it is also a concern of Elster’s. Under this rubric we can investigate, for example, the ways a legislature sets its agenda and votes or the ways constitutional principles function to secure citizens’ rights. Fundamentally we want to create institutions that reach good outcomes through a set of decision-making processes that minimize the workings of bias, self-serving, and special interests. One part of Elster’s goal here is to recapture some of Bentham’s overlooked insights. But he also wants to contribute to the substantive issue: What features of institutional design increase the likelihood of political outcomes that largely conform to the best interests of society (whatever those are)? Bentham’s guiding aim was to work out some features of institutional design that would make corruption and misuse of power least likely in an electoral democracy. “In Bentham’s view, the object of institutional design is security against misrule, or the prevention of mischief – the removal of obstacles that will thwart the 55 56

Elster, Alexis de Tocqueville, 49. Elster, Securities against Misrule.

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realization of the greatest good for the greatest number.”57 Elster endeavors to explicate Bentham’s ideas on this topic; but he is also interested in forwarding the argument in his own terms. So we can look at this book as being both a contribution to the history of thought and a substantive, rigorous contribution to contemporary debates about institutional design. The obstacles that interfere with “good decision making” in the area of public choice are numerous: bad sheep in the process (domineering individuals or spoilers),58 the effects of strategic behavior by participants, cyclical voting outcomes (Arrow paradox), dictatorship (institutional arrangements that permit one actor to determine the outcome), sensitivity of the collective outcome to the order of the agenda, procedural indeterminacy, power differentials, capture of the process by special interests, deadlock through requirements of super majorities, and information asymmetries among participants. One family of mechanisms that Elster considers in some detail involve ignorance, secrecy, and publicity.59 Under this rubric, Elster looks in detail at alternative designs that have been implemented in the use of jury trials to assess guilt or innocence.60 How are jurors selected? What information is provided to the jury, and what information is withheld? Are the identities of jurors known to defendants? Choices that are made in each of these design areas are pertinent to a variety of sources of distortion of outcome: racial bias, self-interest on the part of the juror, or intimidation of the jury by confederates of the defendant. The fundamental point that Elster takes from Bentham is that institutions should not be considered in terms of their ideal functioning, but in terms of how they will function when populated by ordinary people subject to a range of bad motivations (self-interest, prejudice, bias in favor of certain groups). This is the point of “security against misrule” – to find mechanisms that obviate the workings of venality, bias, and self-interest on the part of the participants. In a sense, this is a return to problems of imperfect rationality that interested Elster early in his career, but this time these problems are raised in the context of collective rationality.

analytical marxism Turn now to a final area of Elster’s work: critical analysis of Marx’s theories of society and politics. Marxism underwent a renaissance in the English-speaking world in the 1970s through the contributions of a generation of analytically gifted political scientists, economists, and philosophers. Now referred to as “analytical Marxism,”61 this body of work shed new light on central topics 57 58 59 60 61

Ibid., 1. Elster, Securities against Misrule, 18. Ibid., chapter 2. Ibid. Some of the chief writings within analytical Marxism include McMurtry, The Structure of Marx’s World View; Cohen, Karl Marx’s Theory of History; Roemer, Analytical Foundations of

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within classical Marxism: historical materialism, the theory of exploitation, the class-conflict model of social change, the theory of ideology, and much more. Elster was one of the central contributors to these developments, emphasizing particularly the rational choice foundations of many of Marx’s central arguments. According to Elster, Marxist explanations require micro-foundations, and the tools of rational choice theory, including particularly game theory, are well suited to provide such foundations. His book Making Sense of Marx represents a large-scale development of his interpretation of Marx’s position on all the central issues;62 in addition, he has published many articles on these topics as well as a brief introduction to Marxism.63 Rational Choice Marxism G. A. Cohen’s book Karl Marx’s Theory of History was one of the most influential of the flurry of publications within analytical Marxism.64 Cohen argued that Marx’s theory of historical materialism was coherent and plausible, and that it depended essentially on a pattern of functional explanation. He conceded that it is also possible to attempt to identify the causal processes that underlie functional relations (what Elster calls micro-foundations and what Cohen calls “elaborations” of a functional explanation), but he maintained that it is not mandatory to do so in order to assert a functional explanation. As already indicated, Elster has formulated a powerful critique of the use of functional explanations in social science, so it is not surprising that Elster challenged Cohen’s formulation. In a series of publications, Elster deployed these arguments against Cohen and appears to have the stronger case. Elster’s arguments show that Cohen’s reconstruction of functional relations among social phenomena requires supplementation with an account of the micro-foundations of these functional relations. General claims such as “the capitalist state functions to stabilize capitalist property relations” must be supplemented with accounts of the processes within capitalist society through which the needs of stability are impressed on the structure and behavior of the capitalist state. The call for micro-foundations for Marxism is well and good, but what sorts of underlying mechanisms are available for grounding Marxist explanations? Elster argues that Marx’s chief arguments are generally compatible with a rational choice model of explanation, and that the relevant micro-foundations may be constructed on the basis of rational choice analysis of the choices made by participants within the context of the institutions of capitalism. Essentially Elster maintains that Marx’s central arguments depend upon identifying the best strategies available for key actors (capitalists and workers), and aggregation of

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Marxism; and Przeworski, Capitalism and Social Democracy. Two collections of articles have appeared as well: Ball and Farr, eds., After Marx; and Roemer, ed., Analytical Marxism. Elster, Making Sense of Marx. Elster, An Introduction to Karl Marx. Cohen, Karl Marx’s Theory of History.

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those strategies into large-scale consequences. Along with several other theorists (particularly John Roemer and Adam Przeworski),65 Elster made a strong case for joining classical Marxism with some of the tools of rational choice theory and game theory.66 Elster puts this perspective to particularly useful work in his treatment of the problem of class politics: Under what circumstances are classes capable of achieving collective action in pursuit of shared interests?67 Classical Marxism holds that classes tend to become class-conscious (i.e., aware of shared interests) and class-active (i.e., motivated to act as a group in pursuit of shared interests). But once we adopt a rational choice perspective, this assumption is suspect, since it does not take account of public goods problems (free-rider problems and collective action problems). If we are to put forward a theory of class politics at all, it must include an account of the processes through which classes are capable of constituting themselves as political agents, and this means we need an account of the micro-mechanisms of collective action within a class society. In “Three Challenges to Class”68 and “Marxism, Revolution, and Rational Choice,”69 Elster turns his attention to this set of problems. He emphasizes the importance of providing an account of the micro-foundations of collective action, since most instances of political collective action involve the pursuit of public goods. It is not sufficient, therefore, to refer to the shared interests that members of a class have in the attainment of a political end; it is necessary to identify as well the individual-level circumstances that have given potential participants an incentive to involve themselves in the collective action. Otherwise we should expect free-riding and prisoners’ dilemmas to make collective action unattainable. Others have treated this problem as well,70 but Elster’s discussions carry the issue a step forward. Here again is an instance of Elster’s ability to bring some of the results of one area of social research fruitfully to bear on a topic in a nonstandard area. The Marxist Conception of the Good Life Elster is more affirmative of the philosophical aspects of Marx’s system than other analytical Marxists have tended to be. One important instance of this is Elster’s critique of the consumerist theory of the human good that underlies

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Roemer, Analytical Foundations of Marxism; Roemer, “Methodological Individualism and Deductive Marxism”; Przeworski, Capitalism and Social Democracy; Przeworski, “Marxism and Rational Choice.” The rational choice foundations of Marx’s economics are explored in my Scientific Marx. Elster, Making Sense of Marx, 359 ff. Elster, “Three Challenges to Class.” Elster, “Marxism, Revolution, and Rational Choice” See, e.g., Buchanan, Marx and Justice; Taylor, “Rationality and Revolutionary Collective Action,” and Shaw, “Marxism, Revolution, and Rationality.”

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modern political economy.71 Elster believes that Marx’s writings express a conception of the good human life that is richer and more satisfactory than the welfarist alternative. Elster’s contribution to Alternatives to Capitalism,72 “SelfRealisation in Work and Politics: The Marxist Conception of the Good Life,”73 makes an extended argument for the priority that the goal of self-realization ought to play in our understanding of social life. Here Elster takes issue with several foundational premises of the pro-capitalist argument as a normative position: “(a) The best life for the individual is one of consumption . . . (b) Consumption is to be valued because it promotes happiness or welfare, which is the ultimate good.”74 Against these comsumerist ideals, Elster argues for the importance of self-realization – the full and free development of one’s talents and aspirations, to a reasonable extent. He contrasts self-realizing activities (mastering the piano) with activities of pure consumption (eating a tuna sandwich at your desk) and drudgery (sweeping the streets for forty years). This is plainly a normative position: a life involving self-realization is better than a life of consumption and drudgery. It is a view with a long pedigree, from J. S. Mill and J. J. Rousseau to Kant to Amartya Sen and Martha Nussbaum. What Elster adds to the tradition is important, though: the notion that our ideal of personal fulfillment and a good human life is in fact a key element of the matrix by which we should evaluate alternative institutions. Institutions that promote free selfrealization of the people who are engaged in them are to be favored. Conclusions I have only touched on a few main themes drawn out of Elster’s work. I hope, though, that I have made it plain that there is much to be learned from careful reading of this body of work. In his treatment of the foundations of rationality, in his extensive discussions of the logic of the social sciences, and in his sustained critical perspectives on Marxist theory, Elster has made important contributions to several areas of the social sciences. And even in those instances where other scholars will disagree with his analysis of a particular issue, his clarity and detailed grasp of the issues lead to a higher level of debate. It may be said that Elster’s work serves two particularly important functions. First, he aims to establish linkages between the social science literature and other areas of social and political thought. Elster’s work often serves as a power belt, conveying some of the results of a technical area of social science theory to applications in various areas of social science and philosophy. A second virtue of Elster’s work is equally important: Elster is more inclined than most social scientists to consider the philosophical foundations of various 71 72 73 74

Elster, “Self realization in Work and Politics”; Elster and Moene, Alternatives to Capitalism. Elster and Moene, Alternatives to Capitalism. Ibid., 127 ff. Ibid., 127.

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domains of social theory. There is a tendency within some parts of the social sciences for fascination with the mathematical apparatus to crowd out reflective analysis of the underlying assumptions that the apparatus depends on – for example, the significance of utility functions. (As Elster and Hylland put it, “Formal theorizing in the social sciences is today in some danger of becoming baroque.”)75 Elster, however, is prepared to step back and consider the background assumptions more fully, and to attempt to say how well or poorly a given formalization succeeds in capturing the original intuition. There is a need for both kinds of work within social theory, but Elster’s contributions to the philosophical analysis of presuppositions about rationality, action, and institutions are particularly valuable. References Ball, Terence, and James Farr, eds. 1984. After Marx. Cambridge: Cambridge University Press. Barry, Brian, ed. 1976. Power and Political Theory. Chichester: Wiley. Buchanan, Allen. 1982. Marx and Justice. Totowa, NJ: Littlefield, Adams. Cherniak, Christopher. 1986. Minimal Rationality. Cambridge, MA: MIT Press. Cohen, G. A. 1978. Karl Marx’s Theory of History: A Defence. Princeton: Princeton University Press. Demeulenaere, Peter. 2011. Analytical Sociology and Social Mechanisms. Cambridge: Cambridge University Press. Elster, Jon. 1976a. “Some Conceptual Problems in Political Theory.” In Power and Political Theory, edited by B. Barry. Chichester: Wiley. Elster, Jon. 1976b. “A Note on Hysteresis in the Social Sciences.” Synthese 33: 371 391. Elster, Jon. 1978a. “Exploring Exploitation.” Journal of Peace Research 15: 3 18. Elster, Jon. 1978b. “The Labor Theory of Value.” Marxist Perspectives 3: 70 101. Elster, Jon. 1978c. Logic and Society. Chichester: Wiley. Elster, Jon. 1979/1984. Ulysses and the Sirens: Studies in Rationality and Irrationality. Cambridge: Cambridge University Press. Elster, Jon. 1980a. “Cohen on Marx’s Theory of History: Review of G. A. Cohen, Karl Marx’s Theory of History.” Political Studies 28: 121 128. Elster, Jon 1980b. “Negation Active et Negation Passive.” Archive Europeennes de Sociologie 21: 329 349. Elster, Jon. 1980c. “Reply to Brian Barry.” Political Studies 28, no. 1 (1980): 143 147. Elster, Jon. 1980d. “Reply to Comments on Logic and Society.” Inquiry 23: 213 232. Elster, Jon. 1980e. “Un historien devant l’irrationel: lecture de Paul Veyne.” Social Science Information 19: 773 804. Elster, Jon. 1981a. “‘Introduction’ to Kolm (1981) and Van der Veen (1981).” Social Science Information 20: 287 292. Elster, Jon. 1981b. “Un Marxisme Anglais.” Annales: Economies, Societes, Civilisations 36: 745 757. 75

Elster and Hylland, Foundations of Social Choice Theory.

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Elster, Jon. 1982a. “Belief, Bias and Ideology.” In Rationality and Relativism, edited by Martin Hollis and Steven Lukes. Cambridge, MA: MIT Press. Elster, Jon. 1982b. “A Paradigm for the Social Sciences?” Inquiry 25, no. 3 (1982): 375 385. Elster, Jon. 1982c. “Marxism, Functionalism, and Game Theory.” Theory and Society 11: 453 482. Elster, Jon. 1982d. “Roemer versus Roemer: A Comment on ‘New Directions in the Marxian Theory of Exploitation.’ ” Politics & Society 11, no. 3: 363 373. Elster, Jon. 1982e. “Sour Grapes: Utilitarianism and the Genesis of Wants.” In Utilitarianism and Beyond. Cambridge: Cambridge University Press. Elster, Jon. 1983a. Explaining Technical Change. Cambridge: Cambridge University Press. Elster, Jon. 1983b. “Exploitation, Freedom and Justice.” Nomos 26: 277 304. Elster, Jon. 1983c. “Marx et Leibniz.” Revue Philosophique 173: 167 177. Elster, Jon. 1983d. “Reply to Comments.” Theory and Society 12: 111 120. Elster, Jon. 1983e. Sour Grapes: Studies in the Subversion of Rationality. Cambridge: Cambridge University Press. Elster, Jon. 1984. “Historical Materialism and Economic Backwardness.” In After Marx, edited by Terence Ball, and James Farr. Cambridge: Cambridge University Press. Elster, Jon. 1985a. “The Nature and Scope of Rational Choice Explanation.” In Actions and Event: Perspectives on the Philosophy of Donald Davidson, edited by Ernest Le Pore and Brian P. McLaughlin. Oxford: Basil Blackwell. Elster, Jon. 1985b. Making Sense of Marx. Cambridge: Cambridge University Press. Elster, Jon. 1985c. “Rationality, Morality, and Collective Action.” Ethics 96: 136 155. Elster, Jon. 1985d. “Sadder but Wiser? Rationality and the Emotions.” Social Science Information 24: 375 406. Elster, Jon. 1985e. “Weakness of Will and the Free Rider Problem.” Economics and Philosophy 1: 231 265. Elster, Jon. 1986a. “Comments on Krouse and McPherson’s ‘A “Mixed” Property Regime.’ ” Ethics 97: 146 153. Elster, Jon. 1986b. “Comments on Van Parijs and Van der Veen.” Theory and Society 15: 709 722. Elster, Jon. 1986c. “Further Thoughts on Marxism, Functionalism, and Game Theory.” In Analytical Marxism, edited by John Roemer. Cambridge: Cambridge University Press. Elster, Jon. 1986d. An Introduction to Karl Marx. Cambridge: Cambridge University Press. Elster, Jon. 1986e. “The Market and the Forum: Three Varieties of Political Theory.” In Foundations of Social Choice Theory, edited by Jon Elster and Aanund Hylland. Cambridge: Cambridge University Press. Elster, Jon, ed. 1986f. The Multiple Self. Cambridge: Cambridge University Press. Elster, Jon. 1986g. “The Possibility of Rational Politics.” Critica 18: 17 62. Elster, Jon, ed. 1986h. Rational Choice. New York: New York University Press. Elster, Jon. 1986i. Reply to Symposium on Making Sense of Marx. Inquiry 29: 65 77. Elster, Jon. 1986j. “Self Realisation in Work and Politics: The Marxist Conception of the Good Life.” Social Philosophy & Policy 3: 97 126 [reprinted in Elster and Moene, eds., Alternatives to Capitalism, 127 158]. Elster, Jon. 1986k. “Three Challenges to Class.” In Analytical Marxism, edited by John Roemer. Cambridge: Cambridge University Press. Elster, Jon. 1988a. “Consequences of Constitutional Choice: Reflections on Tocqueville.” In Constitutionalism and Democracy, edited by Jon Elster and R. Slagstad. Cambridge: Cambridge University Press.

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Elster, Jon. 1988b. “Economic Order and Social Norms.” Journal of Institutional and Theoretical Economics 144: 357 366. Elster, Jon. 1988c. “Is There (or Should There Be) a Right to Work?” In Democracy and the Welfare State, edited by Amy Gutmann. Princeton: Princeton University Press. Elster, Jon. 1988d. “Marx, Revolution and Rational Choice.” In Rationality and Revolution, edited by Michael Taylor. Cambridge: Cambridge University Press. Elster, Jon. 1989a. The Cement of Society: A Study of Social Order. Cambridge: Cambridge University Press. Elster, Jon. 1989b. “From Here to There; or, If Cooperative Ownership Is So Desirable, Why Are There So Few Cooperatives?” Social Philosophy & Policy 6: 93 111. Elster, Jon. 1989c. Nuts and Bolts for the Social Sciences. Cambridge: Cambridge University Press. Elster, Jon. 1989d. Solomonic Judgements: Studies in the Limitations of Rationality. Cambridge: Cambridge University Press. Elster, Jon. 1990. “Local Justice and Interpersonal Comparisons.” In Interpersonal Comparisons of Welfare, edited by Jon Elster and John Roemer. Cambridge: Cambridge University Press. Elster, Jon. 1992. Local Justice. New York: Russell Sage Foundation. Elster, Jon. 1993. Political Psychology. Cambridge and New York: Cambridge University Press. Elster, Jon, ed. 1998a. Deliberative Democracy. Cambridge Studies in the Theory of Democracy. Cambridge and New York: Cambridge University Press. Elster, Jon. 1998b. “A Plea for Mechanisms.” In Social Mechanisms: An Analytical Approach to Social Theory, edited by Peter Hedström and Richard Swedberg. Cambridge and New York: Cambridge University Press. Elster, Jon. 1999. Alchemies of the Mind: Rationality and the Emotions. Cambridge and New York: Cambridge University Press. Elster, Jon. 2007. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences. Cambridge and New York: Cambridge University Press. Elster, Jon. 2009a. Alexis de Tocqueville: The First Social Scientist. Cambridge and New York: Cambridge University Press. Elster, Jon. 2009b. Reason and Rationality. Princeton: Princeton University Press. Elster, Jon. 2013. Securities against Misrule: Juries, Assemblies, Elections. Cambridge; New York: Cambridge University Press. Elster, Jon, and Aanund Hylland, eds. 1986. Foundations of Social Choice Theory. Cambridge: Cambridge University Press. Elster, Jon, and Karl Ove Moene, eds. 1989. Alternatives to Capitalism. Cambridge: Cambridge University Press. Elster, Jon, and John Roemer, eds. 1990. Interpersonal Comparisons of Welfare. Cambridge: Cambridge University Press. Elster, Jon, and R. Slagstad, eds. 1988. Constitutionalism and Democracy. Cambridge: Cambridge University Press. Gutmann, Amy, ed. 1988. Democracy and the Welfare State. Princeton: Princeton University Press. Hahn, Frank, and Martin Hollis, eds. 1979. Philosophy and Economic Theory. Oxford: Oxford University Press.

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Harsanyi, John C. 1982. “Morality and the Theory of Rational Behavior.” In Utilitarianism and Beyond, edited by Amartya Sen and Bernard Williams. Cambridge: Cambridge University Press. Hedström, Peter. 2005. Dissecting the Social: On the Principles of Analytical Sociology. Cambridge and New York: Cambridge University Press. Hedström, Peter, and Richard Swedberg, eds. 1998. Social Mechanisms: An Analytical Approach to Social Theory, Studies in Rationality and Social Change. Cambridge and New York: Cambridge University Press. Hollis, Martin, and Steven Lukes, eds. 1982. Rationality and Relativism. Cambridge, MA: MIT Press. Kahneman, D., P. Slovic, and A. Tversky. 1982. Judgment under Uncertainty: Heuristics and Biases. Cambridge: Cambridge University Press. Krouse, Richard, and Michael McPherson. 1986. “A ‘Mixed’ Property Regime: Liberty and Equality in a Market Economy.” Ethics 97: 119 138. Le Pore, Ernest, and Brian P. McLaughlin, eds. 1985. Actions and Events: Perspectives on the Philosophy of Donald Davidson. Oxford: Basil Blackwell. Levi, Isaac. 1986. Hard Choices. Cambridge: Cambridge University Press. Levine, Andrew. 1986. “Review of Making Sense of Marx.” The Journal of Philosophy 83: 721 728. Little, Daniel. 1986. The Scientific Marx. Minneapolis: University of Minnesota Press. Little, Daniel. 1991. Varieties of Social Explanation: An Introduction to the Philosophy of Social Science. Boulder, CO: Westview Press. Little, Daniel. 2011. “Causal Mechanisms in the Social Realm.” In Causality in the Sciences, edited by Phyllis Illari, Federica Russo, and Jon Williamson. Oxford: Oxford University Press. Little, Daniel. 2012a. “Analytical Sociology and the Rest of Sociology.” Sociologica no. 1 (2012). http://www.sociologica.mulino.it/doi/10.2383/36894. Little, Daniel. 2012b. “Explanatory Autonomy and Coleman’s Boat.” Theoria 27/2, no. 74: 137 152. Little, Daniel. 2012c. “Social Mechanisms and Scientific Realism.” Social Epistemology Review and Reply Collective 1, no. 3: 1 5. Mahoney, James. 2001. “Beyond Correlational Analysis: Recent Innovations in Theory and Method” Sociological Forum 16, no. 3: 575 593. Margolis, Howard. 1982. Selfishness, Rationality, and Altruism: A Theory of Social Choice. Chicago: University of Chicago Press. McMurtry, John. 1977. The Structure of Marx’s World View. Princeton: Princeton University Press. Persson, Johannes. 2012. “Mechanistic Explanation in Social Contexts.” Social Epistemology 25, no. 1: 105 114. Popkin, Samuel L. 1979. The Rational Peasant. Berkeley: University of California Press. Przeworski, Adam. 1985a. Capitalism and Social Democracy. Cambridge: Cambridge University Press. Przeworski, Adam. 1985b. “Marxism and Rational Choice.” Politics & Society 14: 379 409. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Roemer, John. 1981. Analytical Foundations of Marxism. New York: Cambridge University Press.

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Roemer, John. 1982a. A General Theory of Exploitation and Class. Cambridge, MA: Harvard University Press. Roemer, John. 1982b. “Methodological Individualism and Deductive Marxism.” Theory and Society 11: 513 520. Roemer, John, ed. 1986. Analytical Marxism. Cambridge: Cambridge University Press. Rotberg, Robert I., and Theodore K. Rabb, eds. 1989. The Origin and Prevention of Major Wars. Cambridge: Cambridge University Press. Sen, Amartya K. 1982. Choice, Welfare, and Measurement. Cambridge, MA: MIT Press. Sen, Amartya K. 1987. On Ethics and Economics. New York: Basil Blackwell. Sen, Amartya, and Bernard Williams, eds. 1982. Utilitarianism and Beyond. Cambridge: Cambridge University Press. Shaw, William. 1984. “Marxism, Revolution, and Rationality.” In After Marx, edited by Terence Ball and James Farr. Cambridge: Cambridge University Press. Simon, Herbert. 1979. “From Substantive to Procedural Rationality.” In Philosophy and Economic Theory, edited by Frank Hahn and Martin Hollis. Oxford: Oxford University Press. Simon, Herbert A. 1983. Reason in Human Affairs. Stanford: Stanford University. Skocpol, Theda. 1979. States and Social Revolutions. Cambridge: Cambridge University Press. Taylor, Michael. 1986. “Elster’s Marx.” Inquiry 29: 3 10. Taylor, Michael. 1988. “Rationality and Revolutionary Collective Action.” In Rationality and Revolution, edited by Michael Taylor. Cambridge: Cambridge University Press. Taylor, Michael, ed. 1988. Rationality and Revolution. Cambridge: Cambridge University Press. Udehn, Lars. 2001. Methodological Individualism: Background, History and Meaning. London: Routledge. Van Parijs, Philippe. 1981. “Why Marxist Economics Needs Microfoundations.” Review of Radical Political Economics 15: 11 24. Williamson, Samuel R., Jr. 1989. “The Origins of World War I.” In The Origin and Prevention of Major Wars, edited by Robert I. Rothberg and Theodore K. Rabb. Cambridge: Cambridge University Press.

part vii DISCUSSION

12 Comments Jon Elster

This remarkable set of contributions is deeply gratifying to its recipient. Collectively, the authors address most of the questions that have preoccupied me since Logic and Society,1 up to and including Securities against Misrule.2 Chapters on specific topics address issues in the philosophy of explanation; the idea of rationality; mechanisms of preference formation; decision making under uncertainty; voting; bargaining; constitution-making; the enforcement of constitutions by judicial review; climate change; transitional justice; suicide bombings; and our reasons for tipping waiters, taxi drivers, and other service providers. These chapters are framed by two bookend chapters, which adopt a longitudinal perspective on my work as a whole. Although it would be ungrateful and absurd to complain about omissions, I note the absence of any extended discussion of my writings on emotion. For the last fifteen years, this topic has, along with constitution making, been my most sustained interest. As I shall observe, these two topics can illuminate each other. Although some of the chapters overlap with others, I shall comment by author rather than by topic. I shall often have the occasion, however, to point to similarities or complementarities. Regrettably but inevitably, because of the compression induced by the format, many of my comments do not do justice to the richness of the analyses.

gargarella and ovejero The authors get it exactly right when they begin their chapter by stating that I have traveled the road defined by Montaigne: “[T]here is an infant-school ignorance which precedes knowledge and another doctoral ignorance which

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Elster, Logic and Society. Elster, Securities against Misrule.

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comes after it.” One could also frame this development in more positive terms: as the circle of light expands, so does the surrounding area of darkness. The worst fate is being ignorant and being unaware of it.3 They also get it right when they observe that the road has involved repeated and sometimes radical self-criticism. The most important change of mind occurred when I gave up the claim4 that constitution making is an act of collective self-binding. Although the metaphor of Ulysses and the sirens can be appropriate for individual decisions, my study of actual constituent processes made me realize that it is multiply inadequate as a metaphor for constitution making.5 My disillusionment with Marxism had a different character. In the 1980s, the group of Analytical Marxists to which I belonged engaged in a form of intellectual autophagy: we criticized central tenets of our common creed so intensely that at the end very little was left. Rereading my article “Marxism, Functionalism and Game Theory,”6 I am struck by my naïveté in thinking that Marxist views could be stated and defended in the framework of rational choice theory, specifically game theory. My views about rational choice theory have also changed over the years. In the subtitles of the three books I devoted to this topic, I explicitly referred to “irrationality” and to the “subversion” and “limitations” of rationality.7 Yet I had not fully understood the extent to which uncertainty may leave rational choice theory with no predictive purchase, and how hot and cold irrationality combine to defeat its predictions. It took a while for the full impact of behavioral economics to be felt. This being said, rational choice theory has a strong normative appeal: we want to be rational. Whatever our aims may be, we are motivated to search for the best means. On this point I may note a disagreement with the authors. They first claim, correctly, that methodological individualism does not commit us to rational choice theory (see also my comments on Little’s chapter), but then go on to claim, if I understand them correctly, that rational choice theory commits us to the assumption of selfish motivations. The two books I recently published in French on disinterestedness and irrationality8 were largely directed against the latter claim. Rational actors can be non-selfish, just as selfish actors can be irrational.9 Whereas it is indeed absurd to try to explain the remittances of emigrants to their relatives in the home country as a rational and selfish strategy, they make perfect sense on the assumption of rational altruism.

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Kruger and Dunning, “Unskilled and unaware of it.” Elster, Ulysses and the Sirens, chapter 2. Elster, Ulysses Unbound, chapter 2. Elster, “Marxism, Functionalism, and Game Theory.” Elster, Sour Grapes; Elster, Ulysses and the Sirens; Elster, Solomonic Judgments. Elster, Le désintéressement; Elster, L’irrationalité. See my response to Little.

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mackie Mackie’s essay is very rich. I have nothing to object to, but perhaps something to add. I shall suggest three accounts of voting that may supplement his. The second and the third both assume that voters are irrational. Downs10 noted that “[e]very election is a signaling device as well as a government selector.” As Mackie observes, Downs also asserted that elections can be what one might call a “democracy-strengthener.” Mackie argues persuasively that votes can also be what one might call “mandate-generators.” He does not mention, however, the signaling effect. By signaling, I have in mind a misrepresentation of preferences that does not aim at increasing the probability that one’s favored candidate will be chosen, but rather at sending a signal about the policies one wants him or her to adopt. Like the mandate-generating vote, the signaling vote does not turn on being pivotal. It differs crucially from the mandategenerating vote, however, in that the signaling voter may not want too many others to send the same signal. Being at the left of the Socialist Party, and confident that it will win in the upcoming elections, I vote Communist to tilt my party to the left. If many others think as I do, however, the Socialists may lose. A mechanism of this general kind may explain the surprising failure of Lionel Jospin to make it to the second round of the 2002 French presidential elections.11 Mackie does not consider a possible explanation of voting in terms of the “warm glow” it provides the voter. Before I proceed, let me note that there are in fact two explananda: whether people vote and, given that they vote, how they vote. Caplan12 addresses the second issue and argues that even when people vote sociotropically, for the public good rather than their private interest, they do so to “enhance their self-image.” In my terminology,13 they are not selfish but egocentric. Affluent voters can afford to buy altruism at low or no cost by voting for redistributive policies that would harm them if they were implemented. Although Caplan does not address the first issue, I conjecture he would offer the same explanation. I shall not discuss whether it is plausible, but only observe that it presupposes irrational voters. Caplan’s theory requires that voters deceive themselves about their own motivation: it is conceptually incoherent to assume that the conscious motivation behind voting could be the desire to enhance one’s self-image, since that effect will come about only if one believes one is acting for the good of others. Nor, finally, does Mackie consider explanations in terms of “magical thinking.” In the words of Quattrone and Tversky:14 “From the perspective of the individual citizen, voting is both causal and diagnostic with respect to a desired 10 11 12 13 14

Downs, An Economic Theory of Democracy, 142. Blais, “Y a t il un vote stratégique en France?” Caplan, The Myth of the Rational Voter, 151. Elster, Le désintéressement. Quattrone and Tversky, “Causal versus Diagnostic Contingencies,” 247.

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electoral outcome. Causally, a single vote may create or break a tie, and the citizen may communicate with like-minded peers, persuading them also to vote. Diagnostically, one’s decision to vote or to abstain is an indicator that others who think and act like oneself are likely to make the same decision.” Magical thinking occurs when an individual uses the diagnosis as a basis for acting and tells him- or herself, “If I vote, others relevantly like me are also likely to vote: therefore I shall vote.” Conjecturally, this account might explain an important fact that Mackie doesn’t address: more people vote when the election is expected to be close. Resemblance is obviously a question of degree. The probability that my identical twin or best friend has the same reaction as me in a given situation is higher than the same coincidence with respect to a random individual. It seems clear that magical thinking is sensitive to such differences. As I noted already, it is based on the idea that because other people are like me, they will act as I do. A natural extension is the proposition that “the more they resemble me, the more likely it is that they will act like me.” The greater the number of people who are sufficiently “like me,” the greater the number of other people whom I can magically influence by my vote. Furthermore, the closer the election, the smaller the number of other people whom I need to magically influence with my vote. From these propositions, it follows that the likelihood of voting increases when an election promises to be close.

roemer Let me first return Roemer’s complement about my intellectual honesty, as shown by my willingness to change my mind. In an article where I tried to trace his intellectual profile, I wrote, “Reading Roemer, I have always been equally impressed by his penetrating and original intellect and by his willingness to acknowledge – indeed, to point out before anyone else – flaws or ambiguities in his own reasoning.”15 (Roemer was an Analytical Marxist, and some of his work had the character of autophagy that I referred to previously.) In the shifting and fluid disciplines of the social sciences, it is perhaps a good idea to be wary of those who never admit to having been wrong. One should also, of course, be wary of those who make too many such admissions – why read them today when they will admit tomorrow to having been wrong? In his chapter, Roemer addresses the question of how to allocate emission rights, as part of a scheme to reduce greenhouse gas emissions. He cites Nicholas Stern to the effect that this issue is “probably the greatest collective action that has ever faced mankind.” As the Stern report emphasizes, the sheer intellectual challenges are also formidable. The impact of the increase of greenhouse gases on temperature levels is shrouded in deep uncertainty,16 as is the impact of 15 16

Elster, “John Roemer,” 249. Weitzman, “On Modeling and Interpreting the Economics of Catastrophic Climate Change.”

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temperature changes on human populations. Moreover, the normative issue of the proper rate of discounting the welfare of future generations remains highly controversial, a problem compounded by the fact that two factors which also affect that welfare – future population size and future technical changes – are also subject to deep uncertainty. I return to some of these questions in my comments on Sunstein’s chapter. Here I shall only comment on Roemer’s proposed solution to the political allocation problem. In his framework, he considers how the two leading polluters, the United States and China, could agree on a scheme of levels of emission and levels of investment in abatement technology. The two countries would, he argues, converge on a Schelling-like focal point, defined as a scheme that would retain the date at which the GDP per capita of the two countries would converge if they took no such measures (i.e., business as usual). This allocation decision is subject to a prior agreement on the total amount of emissions. The proposal assumes that economic models allow us to calculate the convergence date. In my view, the uncertainties to which I have already referred tend to undermine this assumption. In fact, uncertainty combined with mutual suspicion might generate nuclear war between the two countries, as described in the novel Ultimatum by Matthew Glass. I know that Roemer has read this novel, which I recommended to him, but he evidently decided that the scenario was not sufficiently credible or robust to cast doubt on the convergence model. I shall not, however, pursue this issue, but focus the rest of my comments on the bilateral character of the model. While spelled out for bilateral negotiations between the United States and China, Roemer asserts that his solution generalizes to a larger number of participating countries. He adds, however, that “[f]or countries that have suffered from very low growth, one might well call for a subsidy, in the sense of allowing them to grow faster (relative to the others) than under [business as usual].” The determination of these exceptions might, however, call for multilateral bargaining. In fact, I believe that the allocation of emission rights requires an explicitly multilateral framework. Brazil, India, and Russia can hardly be treated as simple “exceptions” to a deal struck between the United States and China. The status of multilateral bargaining theory is somewhere between underdeveloped and nonexistent. N-person noncooperative bargaining theory runs into the problem that every allocation is an equilibrium for N > 2. N-person cooperative bargaining theory is at best normative, not predictive. Moreover, only by accident will there be a unique focal point. “The notion of symmetry and focal points is often associated by bargainers with their notion of ‘fairness.’ But one person’s symmetry is frequently another person’s asymmetry, and the discussion of what is symmetric can be divisive.”17 The list18 in Table 12.1 will illustrate the point. 17 18

Raiffa, The Art and Science of Negotiation, 54. Taken from Vaillancourt and Waaub, “Equity in International Greenhouse Gases Abatement Scenarios,” 491.

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table 12.1 Some Equity Principles to Allocate Emissions Rights or Abatement Costs Principles Egalitarianism right to emit

Significations

Each human being has equal rights, of which is the access to common global resources. Basic needs need Allow countries to emit the minimal to emit levels of emissions required to satisfy the basic needs of the population. Polluter pays Countries should pay according to their contribution to damages Historical Based on accumulated past responsibility emissions and contribution to the damages. Ability to pay Traditional principle of public economy. The rich should pay for the abatement. Comparable costs All countries should be affected simliarly, burdens should be comparable or efforts should be shared in an equal way. Willingness to pay Countries should bear costs according to what they are (or should be) willing to pay given the potential impacts they face. Sovereignty Past emitters should be held (grandfathering) harmless and their current emissions constitute a right established by past usage. Merit Countries should be compensated for their efforts to abate emissions.

Applications Proportional allocation to population. Equal rights per capita. Proportional allocation to population. Minimal threshold on emissions. Proportional reduction to a historical level (1990). Proportional reduction to cumulated emissions (1850 1995). Proportional reduction to gross domestic product (GDP). Equalization of costs, or make them proportional to the GDP. Proportional allocation to the willingness to pay.

Equal percentage cuts from a historical level (1990). Proportional allocation to energy efficiency.

Although Roemer’s counterfactual equity principle is not explicitly included in this list, the principle of comparable costs may perhaps be interpreted along the lines of his proposal. Yet I do not think it has the unique salience that would make it chosen over all the others. Moreover, there is some evidence that countries defend different equity principles according to how well they match their perceived self-interest.19 For this reason, I am afraid that the political obstacles to agreement will be at least as important as the intellectual problems that I cited. 19

Lange et al., “On the Self Interested Use of Equity in International Climate Negotiations.”

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sunstein Whereas Roemer does not address issues of uncertainty, these are at the core of Sunstein’s chapter. His point of departure is an article I wrote in 197920 on the choice between alternative modes of energy production. Although I mainly focused on problems of nuclear power plants, notably the risk of accidents and the disposal of nuclear waste, I also considered the effects of carbon emissions. Rereading the article today, it is clear that I underestimated the conceptual complexity of the issues. Consider first the question of how to distinguish merely conceivable scenarios, such as the existence of “some malicious demon of the utmost power and cunning [who] has employed all his energies in order to deceive me,”21 from those that are sufficiently realistic to serve as premises for action. Although I addressed that issue in my earlier article, my answer was clearly inadequate. It would not, for instance, allow us to assess the argument in Posner22 that because of a “real” possibility that CERN experiments might produce a “strangelet” that would make the earth collapse into a hyperdense sphere, the experiments should be curtailed. Although nobody took action on that possibility, it is not clear how it differs from the scenario that justified the Extra-Terrestrial Exposure Act that the American Congress passed in 1969 and which mandated quarantining astronauts returning from the first missions to the moon, in case they were harboring unknown lunar organisms that might endanger life on earth. The only relevant difference seems to be that the costs of shutting down the CERN would be much larger than the costs of a temporary quarantine. While psychologically intelligible, this trade-off between unknown risks and quantifiable costs seems hard to justify on logical grounds. Let me pursue the question of the appropriate response to uncertainty. Sunstein23 has pioneered in the theory and – in his more recent incarnation as a government official – the practice of making risk-risk trade-offs. A more intractable problem is that of uncertainty-uncertainty trade-offs. Will lower standards of living as a result of measures taken to counteract global warming and to prevent the extinction of mankind trigger a nuclear war that might lead to the extinction of mankind? The second extinction scenario is obviously shrouded in uncertainty, and according to Weitzman,24 so is the first. This case is more radical than the one envisaged in the previous paragraph, since both the costs and the risks are subject to uncertainty. I shall also comment on three issues that Sunstein raises in his chapter: existence value, option value, and incommensurability. Concerning the first, he cites

20 21 22 23 24

Reprinted as appendix 1 in Elster, Explaining Technical Change. Descartes, Meditations, I, 12. Posner, Catastrophe, Risk, and Response. Sunstein, “Health Health Tradeoffs.” Weitzman, “On Modeling and Interpreting the Economics of Catastrophic Climate Change.”

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Cicchetti and Wilde,25 without, however, indicating which of their three varieties of existence value he has in mind: “Vicarious – the value of knowing other individuals are currently able to use [a natural] resource; bequest – the value of knowing future generations will be able to use the resource; inherent – the value of knowing the resource exists over and above any other use or nonuse value.”26 By contrast, option value is “the value to an individual of knowing the natural resource is available for use [by that individual] in the future, over and above expected use value.”27 It seems to me that vicarious value, bequest value, and option value are roughly similar, and pose the same problem. Since none of them form a component of expected value, they are presumably subject to uncertainty rather than to risk. Yet if we do not know whether their value might turn out to be negligible or huge, how can we determine how much we should pay for them? Inherent value can be illustrated by the value of having an unlittered intergalactic space. If humans sends out missiles that leave the Milky Way, they will pollute an otherwise clean cosmic environment. Advocates of “deep ecology,” sometimes citing a dubious Spinozistic pedigree, claim that such practices are unacceptable. To my knowledge, they do not cite the harm they might do to sentient beings in other galaxies, but the mere fact that they are harmful from the point of view of the universe. Although I do not think Sunstein would embrace this (to my mind) obscurantist idea, it does seem to offer the most natural interpretation of the phrase “existence value” – having value in itself, independently of any actual or possible value to sentient beings. If he merely refers to vicarious value or bequest value, these do not seem to differ importantly from option value. Let me conclude by some comments on incommensurability. From the point of view of preference theory, this idea can be understood either as non-Archimedean preferences, of which lexicographic preferences are the best known example, or as incomplete preferences. In the latter interpretation, incommensurability is also close to value pluralism. On either understanding, incommensurability excludes trade-offs. On Sunstein’s conception of incommensurability, it is compatible with trade-offs. The unique character of trade-offs among incommensurable goods is that they may involve a loss of something intrinsically valuable rather than a mere cost. But what if there are losses on both sides of the trade-off, as in Sartre’s example of the choice between taking care of an ailing mother and joining the Resistance? We might be able to save either of two species from extinction, but not both. These examples seem to force us in the direction of value pluralism.

pasquino Pasquino offers a novel and overall convincing reclassification of constitutional systems, arguing that Bryce’s classical distinction between rigid and flexible 25 26 27

Cicchetti and Wilde, “Uniqueness, Irreversibility, and the Theory of Nonuse Values.” Ibid., 1121; my italics. Ibid.

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constitutions is inadequate. As an alternative, he proposes a distinction between the constitutions that are enforced by political norms and those that are enforced by judicial review. The former include unwritten constitutions (or unwritten parts of the constitution), as well as written constitutions in systems that lack judicial review. The latter include written constitutions and, in the exceptional case of Norway, unwritten parts of the constitution. How can a written constitution – a piece of paper, a “parchment barrier” or a “rope of sand” – have causal efficacy? If the constitution establishes judicial review by a constitutional court or by a supreme court, this body is supposed to give teeth to the constitution.28 Yet a legal decision is also nothing but a piece of paper. As Pasquino notes, a court does not have the power of the sword. Although the U.S. Supreme Court can ask the president to send federal marshals to enforce its decisions, he can refuse, as did President Jackson in Worcester v. Georgia (1833). Nor does a court have the power of the purse, as it would need to have for enforcing decisions that require public expenditure. As Pasquino observes, courts need the support of other political actors, acting under the shadow of non-reelection or of sanctions by what Bentham called the Tribunal of Public Opinion, to enforce their decisions. The previous remarks suggest a modification of Pasquino’s proposal, leading to a trichotomy rather than a dichotomy of constitutional mechanisms. First, there are unwritten constitutional norms. These first-order norms exist in all countries, usually as political norms, enforced by the public in its capacity as voters or as members of the Tribunal of Public Opinion. In Norway, some unwritten norms are enforced by impeachment procedures. Here, the lower house of parliament acts as prosecutor, while the verdict is rendered by a court made up of ten members of the upper house and five Supreme Court justices. The responsibility assessed by the court is criminal, not political. In theory, an accused politician could be sentenced to prison. That has never happened, but fines have been imposed in several cases. The most frequent charge has been the government’s neglect to provide parliament with the information it needs to enact laws. In addition to these unique norms, the Norwegian political system is also regulated by ordinary political norms, such as the norm that the constitutional committee in Parliament be chaired by a member of the opposition. Second, there are written constitutions that are not enforced by judicial review. Yet even in the absence of written or unwritten authorization of judicial review, the constitution may have causal efficacy, by virtue of an unwritten meta-constitutional norm. Whenever there exists, as in Belgium or in France [under the Third Republic], a more or less rigid constitution, the articles of which cannot be amended by the ordinary legisla ture, the difficulty has to be met of guarding against legislation inconsistent with the

28

In the United States and Norway, judicial review exists only by virtue of a political norm, established by a judicial coup d’état in respectively 1803 and 1866.

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constitution. As Belgian and French statesmen have created no machinery for the attain ment of this object, we may conclude that they considered respect for the constitution to be sufficiently secured by moral or political sanctions, and treated the limitations placed on the power of Parliament rather as maxims of policy than as true laws.29

Third, there are written constitutions that are enforced by judicial review, whether or not that procedure is listed in the constitution itself. As noted previously, however, even judicial review ultimately depends on support from other branches of government. Brown v. The Board of Education would have had little impact had Eisenhower not sent federal troops to Little Rock. The support from other branches may be due either to internalized respect for the court or to the power of voters and citizens to sanction political actors who abstain from enforcing its decisions. The latter mechanism also relies on a metaconstitutional norm. In the first case, the constitution is enforced by first-level unwritten norms. In the second and third cases, it is enforced by meta-constitutional norms. The empirical question, however, is whether voters care enough about the constitution to penalize politicians who violate it (in the second case) or who ignore judicial review (in the third case) when the voters agree with the substance of what the politicians do.30 Commenting on two conflicts between parliament and Charles II, Hume31 writes that the remonstrances of his parliament obliged him, on both occasions, to retract; and in the last instance, the triumph of law over prerogative was deemed very great and memorable. In general, we may remark, that, where the exercise of the suspending power was agreeable and useful, the power itself was little questioned: Where the exercise was thought liable to exceptions, men not only opposed it, but proceeded to deny altogether the legality of the prerogative, on which it was founded.

Similarly, in 1962, French voters did not seem to object to the blatantly unconstitutional referendum called by de Gaulle to amend the constitution, presumably because voters approved the substance of the amendment.

gambetta Not unexpectedly, Gambetta’s micro-sociological chapter is delightfully insightful and playful. I shall add a few points to the ones he makes and comment on some of his. In my earlier work on the subject,32 I discussed and rejected the explanation of tipping in restaurants as a form of efficient delegation of monitoring from the management to the customers, citing as one objection the fact that in many 29 30 31 32

Dicey, The Law of the Constitution, 87; my italics. Schauer, “When and How (If at All) Does Law Constrain Official Action?” Hume, History of England, 481 482. Elster, Explaining Social Behavior.

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restaurants waiters pool their tips. On reflection, however, it occurred to me that the latter fact creates an incentive for waiters to monitor each other for good service, since a waiter who provides bad service will get fewer tips and thus contribute less to the common pool. (Friends of mine who have worked as waiters confirm this conjecture.) Horizontal monitoring as a response to free-rider behavior can also occur in other contexts. To cite another example from the same book,33 soccer players may be in a better position than either their manager or the spectators to monitor and punish prima donna players, who try to score from a long distance or at a sharp angle rather than passing the ball to those who are in a better position. To encourage such monitoring, the manager should establish a bonus to the team for each win, not to individual players for each goal. Another fact that has come to my attention is the recent tendency in the United States, and perhaps elsewhere, to implement either mandatory tipping or default levels of tipping. In American restaurants, tipping may be optional for small parties, but for parties of six or more, a 20 percent tip – above the standard norm of a 15 percent tip – is often automatically added to the bill. Personally, I resent this practice; other things being equal, I would tend not to come back. With default tipping,34 there is evidence for reactions similar to mine. In some taxis, customers who use credit cards are presented with a screen that provides them with the options of tipping 20 percent, 25 percent, or 30 percent – well above normal tipping rates. Compared to “traditional” taxis, these are twice as likely to receive a tip of zero. At the same time, the average size of tips increases by about 10 percent. Pulling together some of Gambetta’s observations, tipping behavior may be explained by subjective as well as by objective variables. The subjective variables are the motivations and beliefs of the two agents – the (potential) tipper and the (potential) tippee. Tippers may be motivated by a selfish desire for good service, by altruism, or by social norms. They may also be influenced by their beliefs regarding the importance of tips for the income of the tippee or whether the IRS imputes income from tips to the tippee. The objective variables are defined by the nature of the interaction – whether it is face-to-face or anonymous and whether it is one-off or repeated. The subjective variables most likely to generate tipping in various objective settings can perhaps be as represented in Table 12.2. This schematic and oversimplified classification is only a point of departure for some further observations. First, anonymous tipping, whether one-off or in repeated situations, is very rare. The main example is the practice of leaving a tip for room service in a hotel room before checking out. It is unlikely that the behavior can be motivated by self-interest, even in a repeated interaction, since the cleaning person (i) may not be able to reidentify a non-tipping guest and, even if he or she does, (ii) might be punished by the management if the person tries to punish the non-tipper by 33 34

Ibid., 433 434. Haggag and Paci, “Default Tips.”

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all around me. [. . .] In the midst of the blessings from this family, I looked not unlike a hero in the final act of a drama. You will not forget that my faithful spy was there in the crowd. My aim was accomplished. [. . .] After all, I am very pleased with my idea. I have no doubt that this woman is worth making a great effort for. One day this will count for something in her eyes.36

Fifth, Gambetta also argues that tipping may be a form of self-signaling, to persuade oneself that one is a generous person. His reference to Frank37 is slightly misleading, however, as Frank only discusses how behavior, such as tipping in a one-off situation, may causally shape character. In self-signaling, however, it is supposed to reveal it.38 I also think Gambetta may underestimate the paradoxical aspects of this strategy, which essentially requires self-deception. An agent who performed “good actions” only for the conscious end of enhancing his or her self-image could not achieve that aim, any more than one can enhance one’s self-image by paying another person to praise oneself. I return to the idea of self-signaling later. There is much more in Gambetta’s chapter to comment on, but for reasons of space I stop here.

maskivker With Maskivker’s chapter, we pass from the near-trivial issue of tipping to the far-from-trivial issue of suicide missions (to which Gambetta has also made seminal contributions). The motivations behind these missions are probably multiple and certainly complex. They are also highly opaque. By definition, we cannot ask successful suicide attackers about their motives, and statements by unsuccessful ones have an obvious selection bias. In her chapter, Maskivker explores two motivational hypotheses, the “self-redemption theory” and the “agency theory,” and opts for the former. Before I comment on her arguments, let me point to an obvious paradox: How can a suicide attack be a means to achieve some end, such as self-respect or a sense of agency, when the attack destroys the self or the agent? As I have discussed elsewhere,39 the literature on suicide missions contains a large number of motivational hypotheses. Without exception, I believe, these all refer to conscious motivations. The hypothesized goals of the agent include the establishment of a homeland, revenge for the killing of a relative, retaliation for an attack on one’s group, a monetary reward for the family of the suicide attacker, posthumous fame, or a guaranteed place in paradise for the attacker. By contrast, Maskivker’s favored explanation in terms of self-redemption relies on the unconscious mechanism of dissonance reduction. Although Maikovich36 37 38 39

Laclos, Les liaisons dangereuses, letter XXI. Frank, Passions within Reason, 18. Bodner and Prelec, “Self Signaling in a Neo Calvinist Model of Everyday Decision Making.” Elster, “Motivations and Beliefs in Suicide Missions.”

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Kohn40 also cites this mechanism to explain suicide attacks, she implicitly assumes that the attackers are men. Maskivker, however, focuses on an issue specific to women: the culturally induced lack of self-esteem and the attempt to achieve it through a suicide mission. She provides brief biographies of a number of female suicide attackers who were ostracized because of their marital situation (unmarried, divorced, or adulterous) or because of factors outside their control such as infertility or being a rape victim. Cognitive dissonance obtains among mental elements that include beliefs, desires, or, as in the case that was at the origin of the theory,41 emotions. The meaning of “dissonance” is not explicitly defined, but depends on the context. It can take the form of saying one thing and believing another, of desiring an object while believing that one cannot get it, or of experiencing an emotion while not having beliefs that would justify it. In all these cases, dissonance produces some kind of psychic discomfort that sets up a pressure for change to make the elements more consonant with one another. The changes, if they occur, take the form of an unconscious process changing, deleting, or adding mental elements to produce a more consonant whole. Standard examples are “sweet lemons” (I paid a lot for it so it must be good) and “sour grapes” (I can’t get it so it’s not worth having anyway). Maskivker writes that dissonance can result from “engaging in behavior that conflicts with one’s beliefs.”42 This idea can be illustrated by the classic example of a student who is against abortion but changes her views after being asked by her professor to write a pro-abortion essay. Strictly speaking, however, the dissonance results from her knowledge that she is writing the pro-abortion essay together with her anti-abortion beliefs. Dissonance exists only among mental states.43 More important, dissonance reduction is a purely mental process; it never operates by changing behavior. To achieve consonance, we adjust our beliefs and desires, not our behavior. (To be sure, the adjusted beliefs or desires may cause behavior.) This is at least, I believe, the standard theory. Maskivker argues, however, that a woman who suffers from a dissonance between a previous belief that she is “respectable” and “the belief that her ‘worth’ as a woman has been negatively affected by her actions or the actions of others” can remedy the situation by appropriate action, such as taking on a suicide mission. I do not believe this argument works within the standard theory. To make it work, we could try to expand the theory to incorporate the idea of self-signaling that I discussed previously. In the earlier example, one might feel some psychic discomfort between one’s self-image as a generous and altruistic person and one’s awareness of one’s stingy behavior, and try to reduce the dissonance – “buying a better self-image” – by tipping the waiter generously in 40 41 42 43

Maikovich Kohn, “A New Understanding of Terrorism Using Cognitive Dissonance Principles.” Festinger, A Theory of Cognitive Dissonance, vi. My italics. Festinger, A Theory of Cognitive Dissonance, 3.

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a one-off encounter. Analogously, a woman might pay the extremely high price of dying in a suicide mission in order to bolster her self-image. Once again, however, this would require self-deception. Self-respect is essentially a by-product of actions undertaken for other ends44 and cannot be achieved by actions with that end as their conscious purpose. Even if the underlying motive is the desire for self-respect, the conscious goal of the action must be something else, such as posthumous fame, revenge, or one of the other motivations I mentioned. This research strategy could be compatible with dissonance theory in a broader sense: the adjustment of the agent’s mental state does not occur directly, as in the standard theory, but indirectly, through behavior that can support a dissonance-reducing belief. The challenge, however, would be to give an adequate account of self-deception. Scholars disagree about the mechanisms of self-deception and even about its existence.45

offe It is unusual, or so I suppose, for an author to read an account of his or her work that reveals a deeper and fuller understanding of it than the author’s own. This was my experience when I read Offe’s thorough and illuminating chapter on my work on constitution making (CM) in Eastern Europe and on constitution making more generally. Over the twenty-five years I have studied constitutionmaking processes, I have made a number of distinct or isolated observations that were mostly inspired by the specific processes rather than by any general theory or framework. I am grateful to Offe for bringing out the ex post coherence of this work. Generally speaking, I am somewhat unsatisfied with my work on constitution making (CM) in Eastern Europe, partly because I do not master any of the languages in the region and partly because it is hard to carry out my “reductionist” program in a context where our limited knowledge of individual behavior prevents us from carrying out the kind of micro-political analysis pioneered by Ermakoff.46 In Eastern Europe as in many other recent CM processes, the political parties that shape the constitution are to a large extent black boxes: we observe the outputs, but not the processes that created them. Many assemblies also delegate much of CM to equally opaque committees. I am more at ease studying CM in countries whose languages I master, where framers were not subject to rigorous party discipline, and where the most important debates and votes took place in plenum. Thus I have studied the United States in 1787, France in 1789 and 1848, and more recently also Norway in 1814. For these assemblies, we have extensive – although sometimes tantalizingly incomplete – information about the arguments and votes of individual framers. 44 45 46

Elster, Sour Grapes. See symposium on Mele, “Real Self Deception.” Ermakoff, Ruling Oneself Out.

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Offe is too nice or polite to mention the fact that my initial foray into CM was severely misguided. Although the analogy I proposed between CM and Ulysses binding himself to the mast has been quite influential, it is also, as I mentioned earlier, highly imperfect. The idea that CM is analogous to Peter when sober acting to limit the freedom of action of Peter when drunk must be turned upside down. Framers are often “drunk,” that is, under the influence of strong emotions. Moreover, their aim is often to prevent future political actors from promoting their “sober” self-interest at the expense of the general interest. My improved understanding of CM has developed in parallel with – in fact, in interaction with – my increasing appreciation of the role of emotions in human actions. On the one hand, my analysis of fear, and notably of the difference between prudential fear and visceral fear, helped me understand CM in the night of August 4, 1789, in France47 and, more controversially, some of the decisions taken by the Federal Convention.48 On the other hand, my study of CM in France in 1789 and in Norway in 1814 revealed the existence of an emotion not mentioned in any textbook, handbook, or reader on the subject: enthusiasm. As Kant says, this emotion is “blind, either in the choice of its end, or, if this is given by Reason, in its implementation; for it is that movement of the mind that makes it incapable of engaging in free consideration of principles.”49 Enthusiasm can generate good ends, but, as any other emotion, can subvert the rational choice of means. I do not know the importance of this emotion in East European CM. I suspect, but cannot prove, that it must have played some role in the protoconstitutional Roundtable Talks. Offe observes correctly that most of my work on CM has been positive (explanatory), not normative. In my most recent work on the topic,50 the focus is squarely normative. The most important claim is probably the idea that constitutions should be written by an assembly that has CM as its only task, without also assuming legislative or executive functions. There is a risk, exemplified in Poland in 1921 and France in 1946, that a mixed constituent-legislative assembly might write excessive powers for the legislature into the constitution. In turbulent contexts of war or revolution, the separation of constituent and legislative powers may not, however, be practical. The first French Constituante is an example. To address the problem of self-serving choices in that assembly, Robespierre proposed on May 16, 1791, that the framers should declare themselves ineligible to the first ordinary legislature. The assembly adopted this “self-denying ordinance” unanimously, some of the deputies being, in the word of a later historian, “drunk with disinterestedness.”51 Their “blind” enthusiasm turned out to be disastrous.

47 48 49 50 51

Elster, “The Night of August 4, 1789.” Elster, “Constitution Making and Violence.” Kant, Critique of Judgment, 154. Elster, Securities against Misrule, chapter 4. Lebègue, Thouret, 261.

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He also observes, equally correctly, that my work pays little attention to the effects of constitutions once they are adopted. I do not agree, however, with his characterization of this fact as a “gap,” if he uses that word to imply that I ought to have paid attention to these consequences. I believe that CM, from its inception to the final adoption of the document, is a well-defined, self-contained, and interesting research object. To take another example: a scholar might study how wars begin, without being obliged to follow the course of the wars to the end. In both cases, anticipations of future developments will of course enter into the explanation, but the actual developments form a separate object. Offe writes that my “distinction between the strategic and the nonstrategic use of collective precommitments, which is analytically indispensable, remains empirically blind.” I agree that the distinction is often hard to make, but with careful triangulation of evidence, some claims can be supported. I believe, for instance, that in the votes on both August 4, 1789,52 and on May 16, 1791,53 one can distinguish, with some confidence, strategic from nonstrategic arguments and actors. A final comment concerns my distinction between arguing and bargaining, which Offe identifies closely with the distinction between public interest and selfinterest in the motivations of the actors. Although I have also in past writings stipulated this close relation, I now believe it is too simplistic. Two actors may hold different conceptions of the public interest, and be unable to resolve their differences through argument. (I assume that their conceptions are not selfserving, as in the greenhouse gas example I cited in the comments on Roemer.) In that case, they may try to reach a compromise by bargaining. Imagine, for instance, that the members of a municipal council are debating whether to build a swimming pool, a library, or an improved road. They are all motivated by the public interest, understood as the promotion of the overall welfare of the population. Given the notorious difficulty and perhaps impossibility of any rigorous comparison and aggregation of the welfare of different individuals, they may not be able to agree on one option. Bargaining and compromise seem inevitable. I conjecture that such situations arise quite frequently. In this case, the end of public policy is poorly defined. In other cases, the sources of disagreement may be found in different causal theories about the best means to realize a shared and well-defined end. If there is one thing the 2008 financial crisis has shown, it is that these disagreements are not easily resolved by argument. Although some may be ideological, as in the debates that oppose freshwater to saltwater economists, I believe that the source of disagreement often lies in the incredibly complex nature of modern economies. Since different policymakers will have different intuitions, bargaining and compromise are inevitable. These cases, too, probably arise frequently.

52 53

Elster, “The Night of August 4, 1789.” Elster, Le désintéressement, chapter 10.

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lo´ pez-guerra The chapter by López-Guerra examines an exception to a prima facie plausible claim that Offe makes in his chapter: “The more democratic the substance of the constitution, the more democratic is the process by which it is adopted.” By more or less “democratic,” I shall understand a wide or narrow franchise. (To simplify the discussion, I shall ignore the question of wide or narrow eligibility.) The puzzle that López-Guerra examines arises, roughly speaking, when an assembly elected with a narrow franchise extends the franchise, temporarily or permanently, to a larger group. This is, however, speaking very roughly indeed. The issues I will discuss are intricate and complex, and I am not sure I can do them justice in a brief treatment. Let me first state the problem in simplified form: If a referendum is held on a proposal to extend the franchise, shall the prospectively enfranchised have the right to vote on the proposal? The question belongs to a larger class of procedural conundrums. Rather than try to characterize the class, let me give two other examples. Some parliaments that practiced secret voting at some point voted to introduce public voting. Should that vote be taken by secret or by public voting? In 1843, the French parliament abolished secret voting by a public vote, while in 1988 the Italian parliament made the same transition by secret voting.54 One may prefer the French solution on the grounds that public voting is intrinsically superior, as Bentham among others argued, but that argument will not satisfy a strict proceduralist. The second example is hypothetical. Suppose that a constitution has a very restrictive amendment clause, requiring a four-fifths majority for any amendments, and that the constitution allows for the calling of a special convention to consider a weakening of the amendment clause to require only a two-thirds majority. Should one require a four-fifths or a two-thirds majority for amending the amendment clause? If, say, two-thirds of the assembly prefers twothirds and one-third prefers four-fifths, the smaller, self-supporting majority seem normatively superior.55 That argument, too, will not satisfy the proceduralist. The complexity of the problem raised by López-Guerra is usefully seen in the context of American state constitutional conventions, which, here as in other questions, provide a wonderful laboratory for the study of constitution making. (I shall also refer to other constituent assemblies.) In its full generality, the problem involves no less than five franchises (the letters refer to the size of the electorate as a percentage of all citizens): p: the preconvention electorate q: the electorate in a referendum whether to hold a convention r: the electorate that chooses delegates to the convention s: the electorate proposed in the constitution t: the electorate that ratifies or rejects the constitution 54 55

References in Elster, Securities against Misrule, 169 170. Elster and Hylland, Foundations of Social Choice Theory, 8.

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Some examples from American state constitutional conventions may illustrate the relations among these electorates: Virginia 1830: p = q = r < s = t Massachusetts 1780: r = t > p = q > s Tennessee 1834: p < q = r > s = t > p There is often a normative pressure to induce s ≥ r, as delegates may be uncomfortable writing a more narrow franchise into the constitution than the one under which they were elected. As Robespierre acutely pointed out, the attempt by the French Constituante to impose high economic qualifications on the electorate would retroactively undermine the legitimacy of the framers themselves: “thus we are not pure ourselves, as we were chosen and nominated by voters who did not pay [high taxes].”56 The German framers in 1848 faced the same dilemma: “An assembly elected at least in considerable part by manhood suffrage was uneasy about the exclusion of large portions of the laboring classes.”57 Similarly, after the French constituent assembly of 1848 had been elected by universal male suffrage and written it into the constitution, and the first legislative assembly surreptitiously truncated the franchise by 30 percent in the law of May 31, 1850, opponents of the law observed that it would undermine the president and the assembly itself.58 There may also be a normative pressure to induce r > p or t > p. The fact that constitution making is a more serious task than ordinary legislation, creating constraints and rights for the indefinite future, may create a normative pressure for extending the franchise in electing delegates to the convention or in ratifying the proposed constitution. In Massachusetts in 1780, the legislative assembly enfranchised all free adult male town inhabitants for the duration of the constitution-making process. (Having taken this one step forward [r > p], the convention did not however, feel the pressure of the first normative argument, but instead took two steps backward [s < p < r].) In the election of delegates to the 1776 state convention in Philadelphia, it was “decided that in addition to those who already had the vote, adult militia members were to be given the franchise and the right to be candidates for the convention.”59 In the elections to the conventions to ratify the federal constitution, Connecticut, New York, and North Carolina relaxed or waived the property qualifications required for electors to the state legislatures. Similarly, conditions on eligibility were relaxed in many states, at least compared to those used to elect state senators. In New Hampshire, even former loyalists who were normally ineligible could serve as convention delegates.60 56 57 58 59 60

AP, vol. 29, 361. Eyck, The Frankfurt Parliament 1848 1849, 368. Raphaël, “La loi du 31 mai 1850 (suite et fin),” 311. Adams, The First American Constitutions, 76. For references to these cases, see Elster, Securities against Misrule, 227 228.

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In his discussion, López-Guerra addresses a third normative issue, the relation between s and t. (Some of his arguments may also apply to the relation between s and r.) The 1920 introduction of female suffrage in Nebraska may serve as an example. Should women be allowed to vote on their own enfranchisement? López-Guerra argues that in answering this question, legislators or framers might take into account the possibility that some women might vote against their own enfranchisement. In Nebraska, only 954 women did so, while 18,012 voted favorably. In other situations, however, a modernizing elite facing a deeply traditionalist female population might deny women the right to vote on their own enfranchisement, fearing that an alliance of conservative men and women would defeat the proposal, whereas conservative men on their own would not be able to do so. (I note in passing that the extension of the right to vote to a group that does not want it is not a form of paternalism, unless voting is made mandatory.) Empirically, this may be an unlikely situation, but I think the example suffices to show that in some cases one might accept t < s. By contrast, I am not sure I understand López-Guerra’s reasons for thinking that in other cases one might accept t > s. In the past, the question of prospective enfranchisement applied only to female suffrage and to extension of the suffrage to low-income groups. Today these issues do not arise, but the question of age remains a real one, as exemplified by the Danish referendum that López-Guerra cites. He does not, however, tell us what in this case he thinks ought to be done? If a country holds a referendum on lowering the voting age from eighteen to sixteen years, should citizens between sixteen and eighteen years be given the right to vote? I have no clear normative intuition on this point. I’m pretty confident, though, that the prospectively enfranchised would not be highly upset if they did not get to vote. By contrast, if a conservative government held a referendum on raising the voting age from eighteen to twenty-one, the prospectively disenfranchised would certainly claim and obtain the right to vote. The asymmetry might simply be due to loss aversion, but it might also have a normative foundation.

kalmanovitz As both deal with transitions, the chapter by Kalmanovitz is a useful complement to Offe’s chapter. Whereas Offe deals with the forward-looking task of constitution making, Kalmanovitz addresses what is usually seen as the backward-looking task of transitional justice. One of the important contributions of his chapter, however, is to question this sharp dichotomy. His chapter also shows a refreshing sense of realism, and absence of the legalism that, in my view, is distorting both policy and much academic work on transitional justice in general – on retribution as well as reparation. Kalmanovitz overstates my contribution to the normative study of reparations. In the preface to my book on transitional justice, I explicitly stated that my

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focus would be descriptive and explanatory rather than normative.61 Thus, when in that book I made the distinction among entitlements, needs, and efficiency – the past, the present, and the future – as justifications of reparations, I limited myself to the analysis of how these arguments have been used in specific historic cases. My more recent work on the normative aspects of the issue62 was directly inspired by the path-breaking work that Kalmanovitz, together with Maria-Paula Saffon, has carried out over the last several years.63 They have notably brought out previously ignored tensions between transitional justice and distributive justice in post-conflict situations. Before I comment on the chapter, I want to acknowledge a broader debt. Kalmanovitz and Saffon are from Colombia (and from Columbia!). Over the years, we have collaborated on organizing several conferences in Bogotá on transitional justice and land reform. I have also collaborated with the former mayor (twice) of Bogotá, Antanas Mockus, on organizing conferences on a variety of topics, ranging from violence and social norms to varieties of academic obscurantism (hard and soft). In addition, I have interacted with the Colombian Constitutional Court. Most recently, I was a participant observer of the peace negotiations between the Colombian government and the FARC. These interactions have been extremely valuable both on a personal and on an intellectual level. I shall organize my comments around some (partial) analogies between the cases discussed in the chapter and the transitions in Eastern Europe after 1989. The main disanalogy is of course that Kalmanovitz is dealing with the impact of massive and violent war on transitional justice, and especially on reparation, whereas one of the most remarkable facts about the communist regimes in Eastern Europe was the total absence of political violence directed against the regimes (not counting the Hungarian counterviolence in 1956). In spite of this major difference, I believe nevertheless that the following observations are in the general spirit of Kalmanovitz’s argument. He observes that in a massively destructive war, “[d]amage is the rule rather than the exception.” In generalizing this observation to the collapse of communism and its aftermath, my point of departure will be the UN General Assembly Resolution of 2005,64 which states that “lost opportunities” no less than tangible harms can form the basis for compensation claims. In this context, lost opportunities include the lack of freedom to sell one’s labor power, a freedom based on the fundamental right to self-ownership. All communist regimes denied this freedom. As I wrote many years ago: essentially everybody suffered under Communism. Whereas some lost their property, others many others had opportunities denied to them through the arbitrary or tyrannical behavior of the authorities. Access to higher education, to good jobs, to travel 61 62 63 64

Elster, Closing the Books, ix. Elster, “Land, Justice, and Peace.” See Ramakers, Justice or Dignity, for a thoughtful overview. Cited by Kalmanovitz in Chapter 10.

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abroad and other vehicles of self realization was rationed on the basis of political reliability. Moreover, freedom of contract in the labor market was for all practical purposes abrogated, seriously limiting the opportunities of those who had nothing to sell but their labor power.65

In this context, focusing exclusively on property restitution could amount to (a non-Marxian!) form of commodity fetishism. My conclusion – “There is no fixed point from which justice can proceed – only a sea of confusion” – has at the very least a surface similarity to what Kalmanovitz argues, and perhaps a deeper one as well. Yet, as Kalmanovitz observes, one can also use forward-looking arguments for privileging property. As he writes, “Markets cannot exist without generalized respect for individual entitlements, and the point of corrective justice is to secure this respect.” In the Czechoslovak transition, Cepl66 similarly argued that strict restitution was desirable on the forward-looking ground that it would bolster the confidence of foreign investors by eliminating their fear that their property (or profits) might be confiscated. As Cepl also observed, the preference for in-kind restitution rather than monetary compensation may have been due in part to a desire to prevent properties from falling into the hands of the former nomenklatura. Restitution can be harnessed to the ends of retribution. There is, however, a tension between these two propositions, since efficiency arguments can be used both for and against in-kind restitution. By respecting the rights of former owners, one instills confidence in foreign investors. At the same, it is far from obvious that former owners will make the most efficient use of the properties. Kalmanovitz notes, as one alternative criterion, the allocation of properties “on the basis of capacity to exploit and develop” them. This was also the reasoning of the Hungarian Constitutional Court in the “First Compensation Case,” when it ruled, using an explicitly forward-looking argument, that favoring original landowners was justified if and only if “it can be proved that with the preferential treatment of former owners the distribution of state property will yield a more favorable overall social result than equal treatment would.”67 Kalmanovitz also emphasizes how the chaos and misery in postwar situations can justify use of the present-oriented criterion of need. In Eastern Europe, this criterion was applied in the occasional practice of imposing upper limits on in-kind restitution of land to allow for some redistribution to the landless. In this region, the most important application of the criterion was probably the widespread enactment of strong “positive rights” in the first constitutions. Although it was widely expected that these clauses would matter little in practice, they

65 66 67

Elster, “On Doing What One Can.” Cepl, “A Note on the Restitution of Property in Post Communist Czechoslovakia.” Cited from the decision reproduced in Sólyom and Brunner, Constitutional Judiciary in a New Democracy, 114.

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have turned out to be an important element of the constitutional jurisprudence in several countries, sometimes leading to decisions that they could ill afford.

little I now arrive at the second bookend chapter, the well-informed overview of my work by Little. My responses, like his comments, will address specific points that are not necessarily related among themselves. He touches on many issues, but reasons of space prevent me from commenting on all of them. Little begins by considering the question of rational choice (RC), which has been central to my work. He quotes Lars Udhen as saying that I view RC and methodological individualism (MI) as being “inseparably linked.” In Little’s own formulation, they are “closely aligned.” In my view, however, the only relation between RC theory and MI consists in the (in my view trivial) fact that since only individuals can act, only individuals can act rationally. (Advocates of the idea of group agency will of course disagree.) One can subscribe to MI and be convinced that most people most of the time act irrationally. Sometimes, in fact, that’s how the world looks to me. When I published the article “Ulysses and the Sirens” in 1977, later developed as a chapter in Ulysses and the Sirens, behavioral economics had barely taken off. At that time I did indeed assume that irrationality mostly takes the forms that Little enumerates: weakness of will, emotion, impulsiveness, and self-deception (habit, which he also mentions, was less central). In the phrase of David Pears,68 these are all forms of “motivated irrationality.” Although I was aware of and cited the seminal article on “cold” or unmotivated irrationality by Tversky and Kahneman,69 I mostly adopted the traditional assumption that passion is the main obstacle to rationality as well as to reason. Today we know better: people engaged in the sober pursuit of self-interest can be and often are irrational. That rationality does not imply self-interest should be obvious; the failure of the converse implication was more surprising. Little also discusses the important issue of endogenous preference formation. In my own work, it is important mostly as the basis for my criticism of utilitarianism.70 If people have “adaptive preferences,” these cannot be used as inputs to an evaluation of the social order that generated them. Although I contrasted adaptive preference formation with deliberate character planning, I did not adequately address the issue of rational character planning that Little raises. Economists claim that people can rationally choose their rate of time discounting71 or their degree of risk aversion,72 but I find their arguments implausible. At 68 69 70 71 72

Pears, Motivated Irrationality. Tversky and Kahneman, “Judgment under Uncertainty.” Elster, Sour Grapes, chapter 2. Becker and Mulligan, “The Endogenous Determination of Time Preference.” Palacios Huerta and Santos, “A Theory of Markets, Institutions, and Endogenous Preferences.”

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the same time, there is no doubt that it makes sense to renounce excessively ambitious plans, and that most of us at some point have done so. By “renunciation” I mean a conscious, deliberate choice, not the unconscious process of dissonance reduction that often takes the form of downgrading the unattainable goals (“sour grapes”). Yet perhaps the word “choice” is too strong. When some fifty years ago I realized that I did not have what it takes to be a first-class mathematician, my desire to achieve that goal was simply extinguished, although I still think of it as perhaps the highest calling. If we think of wishes as defined over states of the world and wants as defined over actions, I still wish I were a first-class mathematician, although I no longer want to become one. The extinction of my want was neither rational nor irrational: it just happened, and it “made sense.” Little correctly observes that my idea of reaching unanimity through public deliberation was chimerical, as also noted by List et al.73 The latter authors point, however, to a weaker sense in which deliberation can improve collective decisions, that is to say, by causing preferences to be single-peaked and thus preventing the Condorcet paradox of cycling majorities from arising. In my Securities against Misrule,74 I argue for the same conclusion, from the premise of “the civilizing force of hypocrisy.” In this book, I also discuss – and criticize – social-choice theory at much greater length than in previous work. Moreover, I offer a constructive alternative to social-choice theory, in the form of a neoBenthamite framework. Although Little refers to that alternative, he mischaracterizes it to some extent. Very schematically, I identify three desiderata in decision makers: ability, virtue, and energy. Furthermore, I identify four obstacles to the deployment of these qualities: self-interest, passion, prejudice, and cognitive bias. Finally, I identify a number of obstacles to these obstacles, the most important of which are judicious uses of publicity and secrecy when designing institutions. Little also mentions my work on local justice75 and observes in passing that it “brings together normative and analytical perspectives.” This is true enough, but only in a very special sense. In this work, as well as in my work on transitional justice76 and on collective bargaining,77 I incorporate the normative values of the actors in the analytical perspective. With a few exceptions, the normative statements in those writings are all made in the third-person singular or plural. To explain wage bargaining, for instance, we must go beyond resource-based bargaining power and take account of the conceptions of equity and fairness held by the various actors. In Securities against Misrule, however, I have also made normative statements in the first person singular. In the past, I always found this task to be too difficult. On Mondays, Wednesdays, and Fridays I decided that it was too hard for me; on Tuesdays, Thursdays, and 73 74 75 76 77

List et al., “Deliberation, Single Peakedness, and the Possibility of Meaningful Democracy.” Elster, Securities against Misrule, 93 96. Elster, Local Justice. Elster, Closing the Books. Elster, The Cement of Society.

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Saturdays that it was too hard for anyone. I changed by mind because I adopted a procedural approach to normative political philosophy that seems to me both more modest and more robust than the numerous and competing substantive theories. Finally, I shall comment briefly on Little’s objections to my reductionism and his defense of macro-explanations. Here, I think the proof of the pudding must be in the eating. Although I have not read the account of the origin of World War I that Little cites,78 I have read the superb account by Clark.79 It does not offer anything like a “causal-structural explanation,” but makes the events intelligible through a very fine-grained analysis of the main actors, their motivations, and their beliefs, including their often false beliefs about each other. Rather than explaining the outbreak of the war, the alliance structures that Little refers to must themselves be explained by such explanantia; otherwise we cannot understand, for instance, the peculiar half-commitment of the British to the cause of France. References AP Archives Parlementaires, Série I: 1787 1799, Paris, 1875 1888. Adams, W. P. 2001, The First American Constitutions. New York: Rowman and Littlefield. Becker, G., and C. Mulligan. 1997. “The Endogenous Determination of Time Preference.” Quarterly Journal of Economics 112: 729 758. Blais, A. 2004. “Y a t il un vote stratégique en France?.” In Le nouveau désordre électoral, edited by B. Cautrès and N. Mayer. Paris: Presses de Sciences Po. Bodner, R., and D. Prelec. 2003. “Self Signaling in a Neo Calvinist Model of Everyday Decision Making.” In The Psychology of Economic Decisions, vol. 1, edited by I. Brocas and J. Carillo. London: Oxford University Press. Caplan, B. 2007. The Myth of the Rational Voter. Princeton: Princeton University Press. Cepl, V. 1991. “A Note on the Restitution of Property in Post Communist Czechoslovakia.” Journal of Communist Studies 7: 367 375. Cichetti, C., and L. Wilde. 1992. “Uniqueness, Irreversibility, and the Theory of nonuse Values.” American Journal of Agricultural Economics 74: 1121 1125. Clark, C. 2013. The Sleepwalkers. London: Allen Lane. Dana, J., D. Cain, and R. Dawes. 2006. “What You Don’t Know Can’t Hurt Me.” Organizational Behavior and Human Decision Processes 100: 193 201. Descartes. R. (1641), Meditations on First Philosophiy, edited and translated by Donald A. Cress, Indiana: Indianapolis: Hackett. Dicey, A. V. 1915. The Law of the Constitution, 8th ed. Reprint 2001. Indianapolis, IN: Liberty Fund Classics. Downs, A. 1957. An Economic Theory of Democracy. New York: Harper and Row. Elster, J. 1978. Logic and Society: Contradictions and Possible Worlds. New York: John Wiley and Sons Ltd.

78 79

Williamson, “The Origins of World War I.” Clark, The Sleepwalkers.

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Elster, J. 1982. “Marxism, Functionalism, and Game Theory.” Theory and Society 11: 453 482. Elster, J. 1983a. Sour Grapes. Cambridge: Cambridge University Press. Elster, J. 1983b. Explaining Technical Change. Cambridge: Cambridge University Press. Elster, J. 1984. Ulysses and the Sirens, rev. ed. Cambridge: Cambridge University Press. Elster, J. 1989a. Solomonic Judgments. Cambridge: Cambridge University Press. Elster, J. 1989b. The Cement of Society. Cambridge: Cambridge University Press. Elster, J. 1992a. “John Roemer.” In New Horizons in Economic Thought, edited by Warren Samuels. Aldershot: Elgar. Elster, J. 1992b. Local Justice. New York: Russell Sage. Elster, J. 1992c. “On Doing What One Can: An Argument against Restitution and Retribution as a Means of Overcoming the Communist Legacy.” East European Constitutional Review 1: 15 17. Elster, J. 2000. Ulysses Unbound. Cambridge: Cambridge University Press. Elster, J. 2004. Closing the Books. Cambridge: Cambridge University Press. Elster, J. 2005. “Motivations and Beliefs in Suicide Missions.” In Making Sense of Suicide Missions, edited by D. Gambetta. Oxford: Oxford University Press. Elster, J. 2007a. Explaining Social Behavior. Cambridge: Cambridge University Press. Elster, J. 2007b. “The Night of August 4, 1789: A Study in Collective Decision Making.” Revue Européenne des Sciences Sociales 45: 71 94. Elster, J. 2009. Le désintéressement. Paris: Seuil. Elster, J. 2010. L’irrationalité. Paris: Seuil. Elster, J. 2012a. “Constitution Making and Violence.” Journal of Legal Analysis 4: 7 39. Elster, J. 2012b. “Land, Justice, and Peace.” In Distributive Justice in Transitions, edited by M. Bergsmo, et al. Oslo: Torkel Opsahl Publisher. Elster, J. 2013. Securities against Misrule: Juries, Assemblies, Elections. Cambridge: Cambridge University Press. Ermakoff, I. 2008. Ruling Oneself Out. Durham, NC: Duke University Press. Eyck, F. 1968. The Frankfurt Parliament 1848 1849. London: Macmillan. Festinger, L. 1957. A Theory of Cognitive Dissonance. Stanford: Stanford University Press. Frank, R. 1988. Passions within Reason. New York: Norton. Glass, M. 2010. Ultimatum. New York: Atlantic Monthly Press. Haggag, K., and G. Paci. 2013. “Default Tips.” Working Paper, Department of Economics, Columbia University. Hume, D. 1983. History of England, vol. 6. Indianapolis, IN: Liberty Fund Classics. Kant, I. 2000. Critique of Judgment [1790]. Cambridge: Cambridge University Press. Kruger, J., and D. Dunning. 1999. “Unskilled and Unaware of It.” Journal of Personality and Social Psychology 77: 1121 1134. Laclos, C. de. 1782. Les liaisons dangereuses. Lange, A., et al. 2010. “On the Self Interested Use of Equity in International Climate Negotiations.” European Economic Review 54: 359 375. Lebègue, E. 1910. Thouret. Paris: Alcan. List, C., et al. 2013. “Deliberation, Single Peakedness, and the Possibility of Meaningful Democracy.” Journal of Politics 75: 80 95. Maikovich Kohn, A. 2005. “A New Understanding of Terrorism Using Cognitive Dissonance Principles.” Journal for the Theory of Social Behaviour 35: 373 397. Mele, A. 1997. “Real Self Deception.” Behavioral and Brain Sciences 20: 91 136.

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Palacios Huerta, I., and T. Santos. 2004. “A Theory of Markets, Institutions, and Endogenous Preferences.” Journal of Public Economics 88: 601 627. Pears, D. 1984. Motivated Irrationality. Oxford: Oxford University Press. Posner, R. 2005. Catastrophe, Risk, and Response. Oxford: Oxford University Press Quattrone, G. and A. Tversky. 1984. “Causal versus Diagnostic Contingencies: On Self Deception and the Voter’s Illusion.” Journal of Personality and Social Psychology 46: 237 248. Raiffa, H. 1982. The Art and Science of Negotiation. Cambridge, MA: Harvard University Press. Ramakers, R. 2012. “Justice or Dignity: A Research to the Transitional Justice Process of the Forcibly Displaced People of Mechoacán, Colombia.” Master’s thesis, Utrecht University. Raphaël, P. 1910. “La loi du 31 mai 1850 (suite et fin).” Revue d’histoire moderne et contemporaine 14: 297 331. Schauer, F. 2010. “When and How (If at All) Does Law Constrain Official Action?” Georgia Law Review 44: 769 801. Sólyom, L., and G. Brunner. 2000. Constitutional Judiciary in a New Democracy. Ann Arbor: University of Michigan Press. Sunstein, C. 1996. “Health Health Tradeoffs.” University of Chicago Law Review 63: 1533 1572. Tversky, A., and D. Kahneman. 1974. “Judgment under Uncertainty.” Science 185: 1124 1131. Vaillancourt, K., and J. P. Waaub. 2004. “Equity in International Greenhouse Gases Abatement Scenarios: A Multicriteria Approach.” European Journal of Operational Research 153: 489 505. Weitzman, M. 2009. “On Modeling and Interpreting the Economics of Catastrophic Climate Change.” Review of Economics and Statistics 91: 1 19. Williamson, Samuel R., Jr. 1989. “The Origins of World War I.” In The Origin and Prevention of Major Wars, edited by Robert I. Rotberg and Theodore K. Rabb. Cambridge: Cambridge University Press.

Index

abatement technologies: as demanding investment in carbon reducing research and development 53, 58, 255 adaptive preferences 8, 13 15, 273 see also irrationality; Sour Grapes Adat 124, 126 see also honor; Chechnya aftergrowth of war 193, 199 201 akrasia, see weakness of the will see also myopia Alaska native claims: as a settlement act 74 5 see also environmental harm; climate change Albania 155 Alchemies of the Mind 5, 11n20, 118n7, 149n19 see also microfoundations of behavior; Jon Elster alternatives to capitalism: Jon Elster 229 31, 243 workers’ cooperatives 230 workers’ control 230 altruism and voting 24, 26, 253 and tipping 107, 111, 239, 252, 261 2 see also self interest American Citizen Participation Study 26 American National Election Survey 25 analytical Marxism 223, 240 41 see also Marxism anarchy 149 arguing: vs. bargaining and voting xii, xiii, 50, 146, 156, 157, 160, 267 Arrow, Kenneth 66, 228, 240

audience cost problem 51 autonomy xv, 149, 151, 193, 194 202, 208, 214 autonomy based justification for reparation 193, 195, 196 7 Azar, Ofer 97, 107, 108n16, 109 10 bargaining: vs. arguing and voting, see arguing theory 10, 255 Barry, Brian 184 basis for legitimate expectations 196 see also theory of procedural justice beliefs 12n27, 146, 149, 160, 224, 228 9, 234, 275 and cognitive dissonance, see cognitive dissonance and gender 116, 122, 134, 135n75 and tipping 101 2, 112 13, 261 Bentham, Jeremy 238 40, 259, 268, 274 Berry, Albert 212 Blais, Andre 41 3 Brady., Henry E. 41 Brazil 255 Brennan, Geoffrey 27 BRIC countries 51, 58 bride kidnapping 125 see also honor; honor killings Brodsky, David 25 Brown v. The Board of Education 260 Bryce, James 85, 87 90, 93, 258 Buchanan, James 9 Bulgaria 152n38, 155, 164

279

280 Business as Usual (BAU): as a principle of negotiation 51 2, 54 5, 57 8 see also collective wage bargaining Camerer, Colin 27 Campbell, Angus 42 capital: costs 71 destruction of 197n16 foreign 212 investments 70, 212 social 136 stock 57 capitalism 229 231, 241 see also capital Caplan, Bryan 253 Castanheira, Micael 31 causality 16, 117, 124, 158, 212, 232 34, 236 38, 241, 259, 267, 275 in voting, see voting: pivotality see also explanation; mechanisms; rational choice theory; functionalism Cepl, V. 272 Charles II 260 Chechnya 115, 120, 122 7, 130 1 black widows 131 revenge as motivation for becoming a black widow 131, 134, 265 Russia as oppressor 124, 130 1 Chile 198 9 National Truth and Reconciliation Commission 199 Pinochet regime 198 9 China 34, 50 8, 78, 91 2, 94, 98, 255 Chinese constitution 91 2 Chong, Dennis 25 Cicchetti, Charles 258 Circe 150 circularity: in defining “the people” 170, 181 4 Citrin, Jack 25 Clark, C. 275 climate change: and greenhouse emissions 50 1, 60, 62, 67 8, 70 1, 79, 254 and the need for emission reductions 61, 62, 72, 80, 254 United Nations Convention on 61 cognitive dissonance, see mechanisms Cohen, Eli 110 Cohen, Gerald A. Cohen, Joshua 5fn6, 241

Index Coleman, Jules 209 collective action and class politics 242 and climate change 50, 79, 254 and voting 37 41 see also Mancur Olson collective decision making, see arguing; bargaining; voting collective wage bargaining 9, 274 see also negotiation theory Colombia 199n21, 200, 213 14, 271 Colombian Constitutional Court 271 compensation effect 238 compensatory justice 196 see also reparations Conley, Patricia 25 constituent power 85n2, 88, 179 see also constitutions; popular sovereignty constitutional assemblies, see constitutional conventions constitutional conventions 14, 158, 168 76, 186, 268 9 as superior to legislatures for constitution making 159, 169 constitutional efficacy, see constitutions constitutional patriotism 163 constitutional sociology 145 6, 161 constitutionalism 88, 157 see also constitutions; precommitment; self binding; political norms; constitutional conventions constitutions: ancient vs. modern 85 87 efficacy of, 259 flexible vs. rigid xiii, 85, 87 89, 91 92, 94, 258 259 functions of 161 2, 164 material vs. formal 90, 95 ratification of, 171 8, 179, 185 7 and supermajority rules 87 8, 89n14 Verfassung vs. Konstitution 86 see also English constitution; referendum; constitutionalism contributory theory of voting 44 5 see also Gerry Mackie coordination game: as causing reciprocity 108 9 as social norm; 106 8 see also game theory corrective justice 193, 196 7, 199, 272 see also reparations Council of Europe 153, 158

Index counteradaptive preferences 8 Cox, Gary 23 criteria for allocation of resources in post war reconstruction: economic development 192, 213, 215 entitlements 192 3, 207, 208, 211 present need 192 4 Croatia 151, 152n38, 155 Czech Republic 158n69, 164 Czechoslovakia 155 damages, see war damages Dangerous Liaisons 262 date of convergence 51 2, 55 see also focal point Dean, Howard 31 De Greiff, Pablo 199n21, 214 15 Delolme, Jean Louis 86 democracy: Athenian 86, 93 deliberative 15 economics 231 and emotion 163 justification of 16 paradox of 148 and the paradox of nonvoting 21 support for through voting 35 7 transition to 193, 198, 208n51 viability of 164 see also democratic theory democratic theory 168, 184, 187, 239 Denmark 169, 170 desires xi, 12n27, 134, 146, 224, 264, despotism 149 Dicey, Albert Venn 89 91, 94 dignity 99, 151, 194n7, 215 discounting, see time discounting discretionary payments, see tipping disinterestedness 252, 266 division of powers 148, 157 Dowding, Keith 22 Downs, Anthony 22, 35, 44, 253 Durkheim, Emile 132, 234 Dworkin, Ronald 16 East Timor 197n15, 200 1, 203n32, 205n41, 212n62 efficiency xv, 109, 162, 193 4, 202, 208 14, 229, 271 2 see also Pareto Elster, Jon 3 16, 50, 59, 63 5, 68, 70, 72, 79 80, 85, 90, 97 8, 102 9, 117, 118n7, 134n73,

281 145 58, 159 62, 164 5, 168, 170, 186 7, 192 3, 194n7, 198 9, 201 02, 214, 223 35, 237 44, 223 35, 237 44 enfranchisement: first vs. second order 169 172 of felons 186 and gender xiv v, 172, 174 6, 184 6, 270 and property requirements 173, 176 8 and race 172 3 and the justifiability and divergence thesis (JDT) 179 80, 183, 185 and the justifiability and sameness thesis (JST) 179, 183 and the sovereignty and divergence thesis (SDT) 179, 182 3 and the sovereignty and sameness thesis (SST) 179 182 English Constitution 86, 88 9, 92 English Glorious Revolution 87 emotions, theory of 5, 9 11 see also Alchemies of the Mind empathy 108, 110 11 Eisenhower, Dwight D. 260 Ermakoff, I. 265 European Union 51, 169 existence value 63 6, 257 8 explanation: based on mechanisms, see mechanisms causal, see causality functional, see functionalism see also micro foundations of behavior; methodological individualism; rational choice theory Explaining Social Behavior 4n2, 5, 12, 22, 97 see also Jon Elster Explaining Technical Change 4, 13, 232 see also Jon Elster FARC 271 Fehr, Ernst 27 Finkel, Steven E. 41 Fisher, Anthony 66 7, 71 focal point 51, 58, 255 see also Thomas Schelling foundations of rational choice theory, see rational choice theory Founding Fathers 88, 93, 148, 150 Fowler, James 26, 31, 43 France 3, 88n10, 93 5, 238, 259, 266, 275 see also French Revolution; French Third Republic French Third Republic 86

282 Frank, Robert 105 Franklin, Mark 31, 40 French Revolution 89 Freud, Sigmund 147 Frey, Bruno 39 Friedman, Milton 7 Fujimori government 211 see also Peru functionalism 6, 13, 21, 109, 147, 232 5, 241, 252 Funk, Carolyn 25 game theory 103, 224, 227, 232, 241 2, 252 Garcia Monet, Patricia 25 Gaulle, Charles de 260 Germany 93, 95, 150 Glass, Mathew 255 Glover, Jonathan 33 Goldman, Alvin 30 Goodin, Robert 195 Guttman, Joel 36 growth factors: as involving relative growth factors 52 Habermas, Jürgen 147, 228, n15 Hardin, Russell 186 Hamilton, Alexander 93 Hamlin, Alan 27 Hart, H. L. A. 29 Hilger, Naftali 36 historical materialism 6, 241 Hoar, Roger Sherman 175, 184 Hobbes, Thomas 93 honor killings 123 honor: as element of culture 123 4 and fertility 125 7 and marital status 125 7 as sexual purity 123 4 Honoré, Tony 29 Horn, Gyula 154 humanitarian principle: as proposed by Locke 204 Hume, David 260 Hungary 153, 155, 164 Hungarian Constitutional Court 272 Hylland, Aanund 227, 244 impartiality 146, 156, 158n69, 169 incentives 27, 33 41, 58, 116, 210 public insurance mechanism 210 incommensurability 72 73, 75, 257 8 India 68, 78, 130

Index infinite regress: in defininf “the people” 181, 183, 184 inhomogeneity 152 injunctions 62, 74 7, 80, injunctive relief, see injunctions institutional design xi, 4, 13, 14, 168, 170, 184, 230, 239 240 Inter American Court of Human Rights 192n2, 195, 199n21, 214 see also American Convention on Human Rights interest, see self interest internally displaced persons (IDPs) 198, 199n21, 200 2, 212 14 International Copenhagen Conference: as remedy for greenhouse emissions 50 as setting an emissions schedule 50 International Monetary Fund 153 Ird 123 24 see also honor irrationality 6, 8, 149, 252, 273 hot (motivated) and cold (unmotivated) 252, 273 of voting 22, 24, 28, 30, 33 34, 37, 41: in contributing to the common good 37 41 due to redundancy 28 30 due to imperceptibility 30 35 standard theory, see paradox of nonvoting see also rationality; rational choice theory irreversibility 60 74, 76 80, 157 irreversibility premium 63, 68 strong vs. weak form of 60 1, 68 irreversible harm, see irreversibility Israel 86, 93, 127 9, 131, 134 Italian Constitutional Courts 94 Jackson, Andrew 259 Jameson, John Alexander 173 Jankowski, Richard 26 Japan 93, 95, 113, 154 Jospin, Lionel 253 Jowitt, Ken, 153 judicial review 94, 251, 259 60 jury trials 240 justice: distributive 8, 15, 78, 193, 196n11, 208, 227, 271, local 3, 12, 16, 227, 274 transitional xi, xii, xv, 145, 152 3, 164, 170, 191, 193 4, 207 9, 214 15, 251, 270 271, 274 see also reparations

Index Kant, I. 243, 266, Kelsen, Hans 89 90, 93 Kiewiet, Roderick 25 Kinder, Donald 25 Kutz, Christopher 205n41, 215 labor theory 6 left libertarian theories 207 legitimacy 154, 155, 163, 186 7, 201, 205n41, 269 Levine, Andrew 235 Levmore, Saul 21 libertarian theories, see libertarianism see also property rights; reparations; Robert Nozick libertarianism 201 3, 207 “life plan” doctrine 195, 214 Lipton, Michael 212 Loayza Tamayo v. Peru case 195 Lockean theory of property 194, 203 4, 207 Logic and Society 4 see also Jon Elster Lycurgus 154 Lynn, Michael 104, 109 macro explanations 234, 236, 275 Machiavelli 163 Mackie, Gerry 253 4 Making Sense of Marx 4, 5, 235, 241 see also Karl Marx; Jon Elster Mao Tse Tung 34 market efficiency 208 11 exclusive rights 208 transaction costs 209 see also reparations martyrdom 119, 122, 128, 135 6 martyrdom: as triggered by self redemption 117 27, 122, 127 31, 135 7, 263 as triggered by transmutation 118 19, 127, 130n61 Marx, Karl 3 5, 12, 241 see also Marxism; labor theory; historical materialism Marxism 4 6, 21, 223, 240 3, 252 see also analytical Marxism; Marx McIlwain, C. H. 85 mechanisms: defined 12, 151, 237 8 reduction of cognitive dissonance 8, 116, 118 19, 127, 136, 263 5 and self deception 160, 226, 233, 263, 265, 273

283 see also adaptive preferences; microfoundations of behavior; nuts and bolts Meier, Stephan 39 mental mechanism approach 132 see also motivations for terrorism methodological individualism 12, 233 7, 239, 252, 273 see also analytical Marxism; September Group methodological pluralism 232 micro motives: for tipping 98 see also micro foundations of behavior micro foundations of behavior 13, 117, 235, 241 42 Mill, John Stuart 168, 243 Miller, Dale 27 minority rights, see rights Minow, Martha 214 mixed government 89 see also English constitution Mockus, Antanas 271 Montaigne 12fn26, 251 motivations: interest vs. passion vs. reason 146 7, 160, 238 9, 273 for terrorism: 115 16, 119 22, 132 6 see also self interest; suicide bombings Mozambique 197n16, 200 Muller, Edward N. 41 myopia 79 National Election Survey Pilot Study 26 National Environmental Policy Act (NEPA) 61 2, 66, 74 7 see also climate change natural law theories 202 3 Nebraska: and second order enfranchisement 168, 174 176, 183 Necessary Element of a Sufficient Set (NESS) 29 30 negotiation theory 10 Nineteenth Amendment normative political theory 274 5 norms: political xiii, 85, 89 90, 94, 95, 259 social xii, 9 11, 14, 66, 85n1, 107, 111, 118, 122, 136, 234, 261 2, 271 see also constitutions Norway 193, 259, 265 6

Index

284 Nozick, Robert 203 Nussbaum, Martha 243

postmodernism 13 precautionary principle: as Catastrophic Harm Precautionary Principle 70 precommitment xiv, 13, 77, 79 80, 145, 147 51, 165, 227 see also constitutionalism; self binding; Ulysses and the Sirens preferences, see theory of preference; adaptive preferences; counteradaptive preferences; mechanisms property rights, see rights psychoanalysis 21 public choice theory 9, 27 see also James Buchanan; Kenneth Arrow public goods 24, 34 5, 40, 192, 242 danger of free riding 242 logic of collective action 24, 33, 37 prisoners’ dilemma 242 see also Mancur Olson public interest 23, 27 32, 43, 267

Ochoa Espero, Paulina 184 Olson, Mancur 24, 33, 37 8, 41 Opp, Karl Dieter 41 optimal delay 77 option theory 60n2, 65 option value: as call option 65 as existence value 63 4, 257 8 as rainbow options 65 see also option theory Ordeshook, Peter 22, 43 other regarding: motivations 98, 101, 111 reasons 106, 108 12 see also motivations ownership: and cooperatives 230 of land 65, 201, 212 private, see property rights see also self ownership

Quattrone, G. 253

Palestine 120, 122, 124 9, 131, 135 paradox of democracy, see democracy paradox of nonvoting 22 4 see also irrationality: of voting; Gerry Mackie; rational choice paradox of omnipotence 148 Pareto improvement, see Pareto: optimality Pareto, Vilferdo 147 Pareto optimality 27, 209 11, 213 see also efficiency paternalism 150, 270 patriotism, see constitutional patriotism Pears, David 273 Pellikaan, Huib 37, 38 Persson, Johannes 237 8 Peru 195, 199n21, 205 7, 211, 213n66 land restitution in 205 7 philosophy of social science 223, 231 3, 237 plebiscite, see referendum Pocock, John 86 Pogge, Thomas 169 Poland 95, 132n38, 155, 158, 164, 266 Political Liberalism 196n13 see also John Rawls political norms, see norms popular sovereignty 175, 179 84, 187 see also circularity: in defining “the people” Posner, Richard 67, 71, 257

rational choice theory: abuse of 252 foundations of 223 4, 234, 241 2 and homo economicus 6, 25 and instrumental rationality, see rationality and voting, see paradox of nonvoting see also rationality rationality 4 16, 24, 31, 38, 59, 101 2, 150, 165, 223 6, 234, 240, 243 4, 251 2, 273 imperfect 224, 226 instrumental conception of 7, 11, 31 and self interest 252 subversion of, see irrationality thin vs. thick 24, 38, 224 6 of tipping, see tipping and uncertainty 9 10, 57, 62, 65 68, 70 71, 197, 211, 251 2, 254 5, 257 8 and voting, see irrationality see also irrationality; mechanisms; rational choice theory; self interest referendum 154, 168 172, 178, 186, 187, 200, 260, 268, 270 as opposed to plebiscite 171 2 reparations: after World War II 193, 198 post war reconstruction 192 4, 198, 202n31, 205, 212, 215

Index for wrongful damages 192 see also restitution respect 119, 180, 182 see also self esteem responsibility 30, 86, 123, 125 7, 129, 134, 177, 202, 256, 259 restitutio ad integrum 199 see also reparations restitution 193 5, 202 3, 204n39, 205 7, 208n51, 213, 272 Rawls, John 16, 27, 196, 210, 228 theory of procedural justice 196 rights: of citizens 86, 91, 93 4, 157, 192, 239 corrective 196 7, 202, 202n31, 208 emission 254 5 human or fundamental xv, 85, 153, 158, 191 of minorities 153 property xv, 56, 91, 152 3, 162, 193, 201 203 socio economic xv, 158, 161 violations of xv, 192, 194 5, 197, 202, 214 Riker, William 22,43 Rio Declaration of 1992 61 see also climate change risk aversion 273 Robespierre 269 Roemer, John 57, 242, 254 6, 257 Romania 152n38, 155, 158, 164 Rome 93 Roundtable Talks 154 55, 266 Rousseau, J. J. 243 rule of law 90 91, 152, 154, 162, 209 Russia 255 Saffon, Maria Paula 271 Sakti: as female power 124 5 in Sri Lanka 124 satiation effect 238 Schelling, Thomas 14, 78, 233, 255 Schlozman, Kay Lehman, 41 Schwartz, Zvi 110 Shachmurove, Yochanan 36 self binding 14, 145, 147 50, 165 6, 252 self esteem: and breach of reputation 119, 132 and stigma 119 20, 123, 130, 131, 133 self interest 11, 169, 224, 240, 256, 261 2, 266, 274 enlightened 239 institutional 158n69, 159

285 sober 266, 273 and tipping 101 9, 261 2 and voting 23, 25, 27, 40, self ownership 202, 271 self redemption hypothesis 117 21, 130 31, 137 see also martyrdom; transmutation self respect, see self esteem Sen, Amartya 8n14, 15, 210, 243 September Group 5 shame: as motive for terrorism 122, 127 30, 133 Shining Path 205 6 Abimael Guzman 206 Shabman, Leonard 25 Sieyes 85 signaling 92, 94, 98, 105, 133, 165 effect 212 13, 253 self 263 4 Solon 154 Solovenia 151 Smirnov, Oleg 31 socialism 3, 5, 145, 155n57, 208 social welfare theory 223 Solomonic Judgements 4, 9 see also Jon Elster Sour Grapes 4, 8, 225n4, see also Jon Elster sovereign power, see sovereignty sovereignty 93, 154, 178, 256 popular 175, 179 85 see also democracy spillover effect 58, 238 Sri Lanka 115, 120, 122 4, 126 7, 130, 134 Tamil Liberation Tigers (LTTE) 125, 130 Starbuck, Mark 97, 103, 108, 110 state backed right to work 231 status quo ante bellum 198 Stephenson, Kurt 25 Stern, Nicholas 50, 254 sufficiency condition: as proposed by Locke 204 5, 207 as enough and as good 204, 207 Sufism, see Chechnya suicide bombings: by females 115 22, 127 31, 135 37 Hamas 115 16, 128 9 Israel 127 9, 131, 134 by males 116, 122, 133n72, 136 7 Palestinian Liberation Organization 116 Yasser Arafat 115, 127 sunk costs 68, 70 1, 80

286 sympathy: as altruism 107, 111, 261 as fairness 110 11 see also empathy Tennessee: and second order enfranchisement 172 3, 174, 269 theory of preference 225, 258 see also endogenous change of preference theory of social choice: on local justice 16, 227, 274 on scheme of preference aggregation 229 on social preference ranking 228 9 theory of the actor 223, 238 9 Thompson, Edward 25 Thompson Dennis 169, 180 183 time discounting 273 tipping: and fairness 110 112 non tipping equilibrium 99 100 and rationality 101, 102, 104 and reciprocity 108 110 and self interest 101 106 and social conventions 106 108 tipping equilibrium 99, 101, 107 Tocqueville, Alexis de 12, 233, 238 9 tragedy of the commons 209 transitional justice, see justice transitional land law (TLL) 201 see also East Timor Tuck, Richard 30 turnout, see voter turnout Tversky, Amos 10, 253, 273 Udhen, Lars 273 Ulysses 7, 8n13, 16, 79, 145, 150, 226, 252, 266 Ulysses and the Sirens 4, 7, 224, 226, 252, 273, see also adaptive preferences; Sour Grapes; Jon Elster uncertainty, see rationality United Nations General Assembly 191 2, 271 UNICEF 46

Index United States xiii, xv, 34, 40, 41, 50 3, 55 6, 58, 92, 93, 97, 103, 110, 172, 174, 183, 255, 261 Supreme Court 74, 75, 94, 259 U.S invasion of Iraq 198 Vaillant, George 117 Van der Veen, Robert J. 37, 38 Van Parijs, Philippe 5fn6 veil of ignorance 156, 160 Verba, Sidney 41 Vermeule, Adrian 215 victimized poor 207 see also non victimized poor Virginia: and second order enfranchisement 176 8 voter turnout 21, 22, 26, 31, 35, 40 5 voting: to advance public goods 35 41 contributory theory of 44 46 as a duty 22, 24, 37, 41 3 expressive theory of 23, 36, 39, 44 mandate value of 30 3, 253 and pivotality 22 23, 30 31, 41, 45 strategic 42, 44, 45, 160, 175 vs. bargaining and arguing, see arguing winning value of 28, 30 see also enfranchisement, paradox of nonvoting; voter turnout voting rights, see enfranchisement war damages 191 3, 197, 199, 201, 204 8, 210 11, 214 Warsaw Pact 151 weakness of the will 7n12, 79, 150, 273 Weimar 159, 163 Weitzman, M. 257 wide reflective equilibrium 228 see also John Rawls Wilde, Louis 258 wishful thinking 146 Weber, Max 147, 159, 163, 233 Worcester v. Georgia 259 World War II 40, 94 Wright, Richard 29