The Grounds of Political Legitimacy 0198872380, 9780198872382

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The Grounds of Political Legitimacy

The Grounds of Political Legitimacy FA B I E N N E P E T E R

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Fabienne Peter 2023 The moral rights of the author have been asserted All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2023930841 ISBN 978–0–19–887238–2 DOI: 10.1093/oso/9780198872382.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Contents Preface

vii

I .   P O L I T IC A L L E G I T I M AC Y A N D I T S G R O U N D S 1. Political Legitimacy

1.1 What Makes Political Decisions Legitimate? 1.2 The Normative Concern with Political Legitimacy 1.3 The Meta-­normative Perspective

3

3 9 15

2. The Political Will

23

3. Political Factualism

45

4. Political Cognitivism

63

5. A Hybrid Account of the Grounds of Legitimacy

91

2.1 Will-­Based Conceptions of Political Legitimacy 2.2 Equal Political Authoritativeness 2.3 The Arbitrariness Objection 3.1 Fact-­Based Conceptions of Political Legitimacy 3.2 Making the Right Decisions 3.3 The Accessibility Objection 4.1 Belief-­Based Conceptions of Political Legitimacy 4.2 Cognitive Political Authority 4.3 The Epistemic Underdetermination Objection 5.1 Going Hybrid 5.2 Epistemic Constraints on the Political Will 5.3 Responding to Epistemic Underdetermination

23 31 39 46 50 54 63 71 82

91 102 109

I I .   A N E P I ST E M IC T H E O RY O F P O L I T IC A L J U ST I F IC AT IO N 6. Political Deliberation

6.1 Justificationism about Political Legitimacy 6.2 Political Justification and Political Deliberation 6.3 Well-­Ordered Political Deliberation

121

121 128 135

vi Contents

7. Epistemic Norms of Political Deliberation

143

8. Political Deference

166

9. Responding to Political Disagreements

190

7.1 Epistemic Accountability in Political Deliberation 7.2 The Justified Belief Norm 7.3 Procedural Epistemic Norms 8.1 What Is Political Deference? 8.2 When Is Political Deference Required? 8.3 The Limits of Political Deference 9.1 Political Disagreements 9.2 Political Disagreements and Political Justification 9.3 Why Democracy?

143 149 158 166 173 181 190 196 203

Epilogue

211

Bibliography Index

215 225

Preface I first started working on political legitimacy in the context of my doctoral dissertation more than 30 years ago. I’ve been tempted to close this line of research many times, but political events kept reminding me that political legitimacy is one of the most important normative concepts that we have. Political challenges such as climate change or the recent Covid-­19 pandemic require an adequate response that respects the constraints of political le­git­im­ acy. But what are those constraints? My thoughts on this issue have shifted over the last decade or so. I used to think that democracy was the only pos­ sible source of legitimacy. But I don’t think that anymore. I still believe that there is a deep connection between inclusive political deliberation, of the sort supported by a democratic political culture, and political legitimacy. Any erosion of a democratic political culture would be a step in the wrong direction. But the track-­record of democracies in meeting important political challenges is dubious. Think of climate change, or of deep-­ seated and still widening social and economic inequalities. Of course, some of the political problems we are facing today are the result of corrupted democracies, not the fault of democracy itself. But as the Covid-­19 pandemic has also made vivid, there is potentially a lot at stake in political decision-­making. Wrong political decisions can put us all at risk. I now think that a failure to take measures necessary to protect the population from potentially catastrophic outcomes is a distinct source of illegitimacy. Democratic decision-­ making might not offer sufficient safeguards in this regard. Political office holders and citizens can and should be held accountable to a higher standard. In this book I explain what this might entail. I’m deeply indebted to a great number of people for helping me develop my thoughts on the topics of this book. I’ve particularly benefited from conversations with Dave Estlund, the late Jerry Gaus (alas!), Klemens Kappel, Michael Hannon, Herlinde Pauer-­Studer, and Kai Spiekermann. Others I wish to thank include Elizabeth Anderson, Adam Arnold, Natalie Ashton, Elvio Baccarini, Sameer Bajaj, Thomas Baldwin, Aurélia Bardon, Christian Barry, Duncan Bell, Chris Bertram, Luc Bovens, Matthias Brinkmann, Bruce Brower, Ian Carter, Quassim Cassam, Robin Celikates, Ivan Cerovac, Emanuela Ceva, Bruce Chapman, David Christensen, Tom Christiano, Matthew Clayton,

viii Preface Tony Coady, Rowan Cruft, Kevin Dorst, Antony Duff, John Dunn, Elizabeth Edenberg, David Enoch, Cécile Fabre, Julian Fink, James Fleming, Rainer Forst, Sandy Goldberg, Alvin Goldman, Bob Goodin, Stefan Gosepath, Amanda Greene, Alex Guerrero, Dan Halliday, Antony Hatzistavrou, Jonathan Heawood, Ulrike Heuer, Duncan Ivison, Jack Knight, Chandran Kukathas, Cécile Laborde, Jennifer Lackey, Dimitri Landa, Charles Larmore, Christian List, Steve Macedo, Matt Matravers, Katrin Meier, David Miller, Liam Murphy, David O’Brien, Philip Pettit, Ryan Pevnick, Snježana Prijić Samaržija, Jonathan Quong, Joseph Raz, Massimo Renzo, Patricia Rich, Henry Richardson, Regina Rini, Oliver Roy, Kristen Rundle, Debra Satz, Ben Saunders, Hans Bernhard Schmid, Melissa Schwartzberg, Rob Simpson, Zofia Stemplowska, Tom Stoneham, Victor Tadros, Bob Talisse, Anthony Taylor, Patrick Tomlin, Yann-­Allard Tremblay, Alex Worsnip, Han van Wietmarschen, Chad van Schoelandt, Kevin Vallier, Andrew Valls, David Velleman, Daniel Viehoff, Alex Voorhoeve, Steve Wall, Kit Wellman, Leif Wenar, Catherine Wilson, Jo Wolff, and Gabriel Wollner. Many more people have given me helpful feedback at conferences, workshops, and research seminars, and I’m so grateful to organisers and participants. Events included the following: panel on the epistemic responsibilities of ­citizens, APA Eastern Division annual conference, Baltimore; Democratic Reasons workshop, University of Warwick; online workshop on Should We Listen to Those Who Deny Science?; Legitimate Decision-­Making in Times of Crisis workshop, The Hoffberger Center for Professional Ethics, University of Baltimore; Epistemic Circumstances of Democracy conference, University of Rijeka; Justitia Amplificata annual conference, Frankfurt; Normative Theory Group workshop, University of Hamburg; Political Epistemology workshop, Georgetown University; Legitimacy and Stability in Fractious Times workshop, University of Leeds; Association for Social and Political Philosophy annual conference, LUISS Guido Carli/Sapienza, University of Rome; Political Epistemology conference, Institute of Philosophy, London; PPE conference in honour of Luc Bovens, LSE; Deep Disagreements conference, Humboldt University Berlin; Democracy, Legitimacy, and Hate Speech conference, Queen Mary University; Law and Normativity workshop, Queen Mary University, Law School; Nomos conference on political legitimacy, APA Central Division annual conference, Kansas City; Legitimacy and the State conference, Julius Stone Institute of Jurisprudence, University of Sydney; workshop on Justice and Risk, Nuffield College Oxford; conference on Contractarianism, Inter University Centre Dubrovnik; workshop on Religion and Public Justification, University College London; Epistemic Value of Group Deliberation conference,

Preface  ix Northwestern University; New Directions in Public Reason conference, University of Birmingham; Value of Democratic Procedures workshop, University of Pavia; workshop on Factual Disagreements and Political Legitimacy, University of Copenhagen; Oxford Studies in Political Philosophy conference, Tucson; Society for Applied Philosophy annual conference, University of Zurich; conference on Why Not Epistocracy? University of Oslo; workshop on Steven Darwall’s work, University of Vienna; Democracy conference, University of Belgrade; Walking With Rousseau: Group Attitudes between Aggregation and Association workshop, University of Geneva; Democracy workshop, University of Basel; conference on Social Epistemology and Epistemic Responsibility, King’s College London; Experts and Deliberative Democracy workshop, University of Hull; conference on “John Rawls’ ‘Political Liberalism’ ”, University of Bochum; symposium on Gaus’ The Order of Public Reason, LSE; Democracy and Rights workshop, University of Stirling; Epistemic Life of Groups workshop, London; Authority, Legitimacy, and Legality conference, University of Vienna; the Association of Social and Legal Philosophy annual conference, University of Warwick; Authority, Legality, and Legitimacy conference, Distortions of Normativity Project, Vienna; workshop on the Epistemic Life of Groups, Institute of Philosophy, London. I’ve also received many helpful suggestions at research seminars at ANU, University of Cambridge, East Anglia, EHESS in Paris, Hull, Leiden, Maxwell School of Citizenship and Public Affairs at Syracuse, Melbourne, NUI Galway, NYU, University of Oxford, University of Rijeka, University of Stirling, Tulane University, University of York, and at the New Directions in Political Epistemology seminar series at the Institute of Philosophy in London. Over the course of working on the themes of this book, I was invited to give talks at several graduate conferences, and the discussions there were among my favourites. I thank audiences at the Knowledge and Power: Epistemic Conflicts in Democracy conference, University of Essex; the St Andrews CEPPA graduate conference in April 2021; the 1st Geneva graduate conference in political theory; the PPE graduate conference in Witten-­Herdecke in May 2016; the 13th Pavia Graduate Conference in Political Philosophy; and the 5th International Graduate Conference at the CEU in Budapest. I also benefited immensely from two events at the University of Rijeka: a summer school in 2016 and a symposium in 2013 dedicated to my work on democratic legitimacy. In July 2021 I gave the Wittgenstein Lectures at the University of Bayreuth, and that was a first test run for the full manuscript. It was a very intellectually stimulating week! I’m very grateful to Gabriel Wollner and everyone else

x Preface involved in organising the event. I received many excellent questions and comments from students and faculty that helped me improve the presentation of my argument. Two anonymous reviewers at OUP provided extremely thoughtful and helpful feedback on each chapter, and I think the book improved a lot thanks to their comments. I’m also very grateful to Michele Giavazzi for his insightful comments and his help with preparing the final version of the manuscript. I started the research programme that led to this book when I held a Leverhulme research fellowship on The Normativity of Political Legitimacy in 2010/11. I’m very grateful to the Leverhulme Trust for this fellowship. I also greatly benefited from a one-­month stay at the ANU in 2016, following an invitation from Geoff Brennan and generously supported by their PPE programme. I had many enjoyable conversations with Geoff on the topics of this book during that time, and was very saddened by his recent death. From 2019 to 2022, I was involved in a collaborative AHRC-­funded project on Norms for the New Public Sphere. I very much enjoyed the regular research meetings I  had with Rowan Cruft, Jonathan Heawood, and Natalie Ashton, which touched on many aspects of this book. In 2021/22, I had the good fortune of spending a year at Tulane University, on a Murphy Fellowship at the Center for Ethics and Public Affairs. I had a wonderful time in New Orleans, also thanks to many conversations with Michael Hannon and David O’Brien, and the fellowship allowed me to complete the work on this book (and start a new research project in moral philosophy). The book incorporates material from previously published papers, and I thank the publishers for giving me permission to use this material. “Epistemic Norms of Political Deliberation.” In Michael Hannon and Jeroen de Ridder (eds.), Routledge Handbook of Political Epistemology. New York: Routledge, 2021, pp. 395–406. “The Grounds of Political Legitimacy.” Journal of the American Philosophical Association 6(3): 372–90, 2020. The book also draws on ideas from the following publications and I’m grateful to the publishers for allowing me to do so: “Truth and Uncertainty in Political Justification.” In Elizabeth Edenberg and Michael Hannon (eds.), Political Epistemology. Oxford: Oxford University Press, 2021, pp. 64–75.

Preface  xi “Political Legitimacy under Epistemic Constraints: Why Public Reasons Matter.” In Jack Knight and Melissa Schwartzberg (eds.), Political Legitimacy (Nomos volume). New York: NYU Press, pp. 147–73, 2019. “Legitimate Political Authority and Expertise.” In Wojciech Sadurski, Michael Sevel, and Kevin Walton (eds.), Legitimacy: The State and Beyond. Oxford: Oxford University Press, pp. 32–42, 2019. “Political Legitimacy.” Stanford Encyclopedia of Philosophy (Summer 2017 Edition), Edward  N.  Zalta (ed.) https://plato.stanford.edu/archives/ sum2017/entries/legitimacy/. “The Epistemic Circumstances of Democracy.” In Miranda Fricker and Michael Brady (eds.), The Epistemic Life of Groups. Oxford: Oxford University Press, 2016, pp. 133–49. I’m very grateful for detailed comments I’ve received on all those papers, especially from Michael Brady, Jeroen de Ridder, Elizabeth Edenberg, Miranda Fricker, Michael Hannon, Jennifer Rubenstein, Melissa Schwartzberg, Micah Schwartzman, Kevin Walton, and from anonymous referees. My final set of thanks has less to do with the content of this book. First of all, I want to express my deep gratitude to my partner Nigel for his warm support and great sense of humour. Thanks also for helping me stay grounded! And I want to thank Heike Roesel for allowing me to use her wonderful print “Loop II” on the cover of this book. Finally, I want to thank the OUP team for all their help in producing this book.

PART I

P OL IT IC A L L EG IT I M ACY A N D IT S GROU NDS

1 Political Legitimacy Political decisions have the potential to greatly impact our lives. Think of decisions in relation to abortion or climate change, for example. This makes political legitimacy an important normative concern. As I understand it, it is a concern with the permission to make binding political decisions. We expect political office holders to uphold the constraints of political legitimacy. Abuses of political power are illegitimate. We also expect citizens to honour political decisions that are legitimate. But what grounds these normative expectations towards political office holders and citizens? In other words, what makes political decisions legitimate? Are they legitimate in virtue of having support from the citizens? This is what democratic conceptions of political legitimacy maintain. And they are right to highlight that legitimate political decision-­ making must respect well-­founded disagreements among the citizens. But what if democratic decisions fail to track what there is most reason to do? For example, what if a democratically elected government fails to take measures necessary to protect its population from threats related to climate change? Shouldn’t that be recognized as a source of illegitimacy? The question of what makes political decisions legitimate is not new. But revisiting it is timely in light of increasing pressures on democracy and the high-­stakes political problems that governments are facing.

1.1  What Makes Political Decisions Legitimate? There are two approaches we can take to studying political legitimacy as I’ve defined it. A normative approach investigates the normative conditions under which there is a permission to make a binding political decision. That approach focuses on the relationship between political legitimacy and other normative concerns, for example a concern with justice, or with respect for the citizens’ autonomy. A second approach, which is often overlooked, is meta-­normative. That approach focuses on the grounds of political le­git­im­acy. The grounds of political legitimacy are the sources of its normativity.

The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0001

4  The Grounds of Political Legitimacy In this section, I first introduce how I think about our key question: what makes political decisions legitimate? I then explain why legitimacy is an important normative concern. In the final section of this chapter, I discuss the differences between a normative and a meta-­normative perspective on pol­it­ ical legitimacy.

(a)  The Political Will Many think that political legitimacy depends on some form of democratic political control. We can witness the force of this idea in the regularly occurring calls for more democracy—­in the Hong Kong protests of 2019, for ex­ample, but also in regional resistance to overly centralized forms of government. On this widely held view, political decisions are legitimate in virtue of having been made democratically in one form or another. The appeal to democracy is just one example of a very robust and longstanding tradition of political thought that takes the will of the people as the ground of political legitimacy. The idea that the political will is the ground of political legitimacy is prominently articulated in social contract theories (e.g. Hobbes 2017 [1651]). But we also find it in contemporary forms of liberalism (e.g. Rawls 1993) as well as in republicanism (e.g. Pettit 2012). The broader claim, to which democratic theories of political legitimacy tend to be committed, is that political decisions are legitimate in virtue of how they respond to the political will. With the surge of populism that we are witnessing early in the 21st century, appeals to the political will have become even more prominent, but also more dubious. While populists appeal to the political will, this appeal isn’t necessarily democratic. Populists themselves tend to pitch the will of the people in opposition to decisions made by democratically elected representatives. It is often claimed that the political elite is out of touch and that there is a will of the people that is in opposition with the decisions made by parliament (e.g. Mudde and Kaltwasser 2012; Muller 2017). Critics of populism tend to attack this attempt to circumvent democracy in the name of the political will (e.g. Weale 2018). Faith in democracy, and in the political will as the ground of legitimacy, is also being undermined in a different way. 2016, in particular, is the year in which many lost confidence in democracy, first with the Brexit decision in June 2016 and then with the election of Trump in November of that year. Of course, there have been controversial democratic decisions before 2016

Political Legitimacy  5 (think of the Swiss minaret building ban, to use just one of many examples). And the rapidly rising economic and social inequalities in many long-­ established democracies, the slow response to the climate crisis, and many similar ex­amples have also shed doubt on the ability of democracies to tackle urgent pol­it­ical problems. The question many have asked in response to such cases is, how can the political will be a ground of political legitimacy if it is uninformed or easily misled, and if democratic procedures have a tendency to uphold the wrong decisions (e.g. Brennan 2016)? To be clear, that some people disagree with a democratic decision is not, in itself, a reason to start doubting democracy. That’s just a feature of democracy, and it is inevitable if democracy is a tool for making political decisions in the face of political disagreements (Waldron 1999). And that some democratic decisions turn out to be mistakes need not be enough to lose confidence in democracy either. Mistakes do not pose a problem for political legitimacy if we can trust democracy to make fewer such mistakes or to realize values that offset the costs of any mistakes. Democracy is in trouble, however, if relying on the political will stands in the way of making legitimate decisions. And that is the case in circumstances in which the problem doesn’t just arise from a deformation of the political will—­say because of a corruption of democratic decision-­making procedures. Democracy is in trouble in circumstances in which the political will is itself a source of illegitimacy. Consider decision-­making in response to the climate crisis, as an example. Could it be that citizens can’t always be trusted to correctly assess the threat that climate change poses, and to make the right decisions for future generations? Current circumstances force us to consider this as a possibility. In light of these pressures on the political will as a ground of legitimacy, it is thus timely to consider alternatives.

(b)  Cognitive Political Authority The main alternative to the view that the political will is the ground of pol­it­ ical legitimacy is the view that decision-­making power should be placed in the hands of those with an ability to track the right decisions. Call this ability cognitive political authority, or cognitive authority, for short. The idea that legitimate political decisions are those made by someone, or a body of people, with cognitive authority used to be quite common before the Enlightenment. We find it articulated in Plato’s Republic, which criticizes the arbitrariness of democracy and argues in favour of the philosophers’

6  The Grounds of Political Legitimacy rule—­rule by those who have cultivated expertise in identifying the right decisions and who are not side-­tracked by their own interests. As Plato writes (473d–­e): there will be no end to the troubles of states, or . . . of humanity itself, till philo­sophers become kings in this world, or till those we now call kings and rulers really and truly become philosophers, and political power and phil­ oso­phy thus come into the same hands.1

The idea that the ground of political legitimacy is cognitive political authority, and not the political will, can also be traced to the Bible. Chapter 13 of the Epistle to the Romans is an origin of the divine right of king theory of pol­it­ ical legitimacy. While some versions of this theory grant absolute political power to monarchs, Luther’s influential interpretation of this passage suggests that secular rulers are uniquely authorized to rule in virtue of their superior grasp of God’s will, and to the extent that they do have this superior grasp.2 The Enlightenment has put pressure on the belief that there is a natural political hierarchy grounded on epistemic privilege. Who has cognitive pol­it­ ical authority? Who is best able to judge, which political decision should be made? If the ability to make political judgments is a product of our faculty of rationality, a faculty that (adult) citizens have in roughly equal measure, isn’t a legitimate political decision one that responds to the citizens’ will? Despite these challenges, the idea that political decisions are legitimate in virtue of being based on cognitive political authority has lasting appeal in contemporary political philosophy. We find the idea well articulated in Joseph Raz’ work (e.g. Raz 1986) and in work that builds on that. As I’ll explain in more detail later (in Chapter 4), Raz argues that political legitimacy depends on whether a de facto political authority—­say a government—­is able to track what there is most reason to do with sufficient reliability. The thought is that if the citizens are less well placed to track the right decisions themselves, they should defer to the political authority. Relatedly, those who defend epistocratic conceptions of political legitimacy (e.g. Brennan 2016) also invoke ­cognitive political authority as the ground of political legitimacy. On an ­epistocratic conception, political decision-­making should be in the hands of those who are sufficiently competent. But it’s not only elitist theories that

1  Quoted from the Penguin edition. See also the discussion in Lane’s introduction to this edition on page xxxiiff. 2  See Skinner (1978: 14ff.).

Political Legitimacy  7 prioritize cognitive political authority. Some epistemic theories of democracy are also best interpreted as committed to the view that political legitimacy stems from cognitive political authority, not the political will. On those ­conceptions of democratic legitimacy, cognitive political authority is achieved by a wisdom-­of-­the crowds process (e.g. Landemore 2013; Goodin and Spiekermann 2019). At a more practical level, we can illustrate the idea that political legitimacy may stem from cognitive political authority in relation to the political role of experts. It is often said that experts can only advise, not decide. But this masks the influence of cognitive political authority on legitimate political decision-­ making. To see this influence, consider how we’d assess a government that disregards overwhelming expertise on a particular political problem. In the water crisis in Flint, Michigan, for example, the government came under massive pressure once it was established that the tap water was highly toxic.3 A democratically elected government can’t legitimately ignore a problem that threatens the health and the lives of its population, once it’s clear what the problem is and how it can be remedied. If there is sufficient expertise on a particular issue, then political decision-­makers are left with very little wriggle room: legitimate political decision-­making must then reflect such expertise. The example shows that there are cases in which cognitive political authority, and not the political will, settles what political decisions can legitimately be made.

(c)  Epistemic Underdetermination and Epistemic Accountability While the benefit of expert-­led political decision-­making in the case of a water crisis is perhaps obvious, it is also clear that this sort of robust expertise is not usually available in what we may call the epistemic circumstances of politics.4 This epistemic problem puts a distinct kind of pressure on cognitive political authority as the ground of political legitimacy.

3  As Pauli (2019) documents it well, the Flint water crisis also illustrates the importance of democratic activism. It was activists, not experts, who first drew attention to the problem, and citizens’ participation played an important role throughout the crisis. I return to this issue in Chapter  8 (Section 8.3). 4  I’m echoing Waldron (1999) on the circumstances of politics here. As I’ll explain in chapter 4, the normal epistemic circumstances of politics are characterized by (i) fragmented bodies of evidence, (ii) insufficient political competence, and (iii) difficulties with identifying the expert point of view even if it exists. Estlund (2008) has drawn our attention to (iii), but the first two problems are also significant.

8  The Grounds of Political Legitimacy In the normal epistemic circumstances of politics, there are deep dis­agree­ ments on what response a particular situation requires, including among experts, and this limits the political decision-­making power that experts can legitimately hold. Cognitive political authority remains epistemically underdetermined in such scenarios. Consider the situation many countries faced two years into the Covid-­19 pandemic. While a lot was at stake, governments faced the difficult task of weighing a wide range of relevant considerations—­ both moral and empirical. Decision-­making had to factor in epidemiological risk, the social, economic, and health effects of prolonged lockdowns, the management of children’s education, the effects on health services and other services, and questions about welfare goals versus other goals, including the protection of liberty. As a result, there was, as is typical in political life, much room for disagreement, including among experts, and more political wriggle room. While the epistemic circumstances of politics thus tend to be challenging, we shouldn’t rule out cognitive political authority as a possible ground of political legitimacy. A key claim of this book is that the political will isn’t the only ground of political legitimacy, even though it’s an important ground. There are at least some occasions in political life that require deference—­from both political decision-­makers and ordinary citizens—­to cognitive political authority. I explain this on the basis of our epistemic accountability. Epistemic accountability is a state of being answerable for our actions—­to ourselves and to others—­that depends on our epistemic circumstances. When the epistemic circumstances are sufficiently favourable, our epistemic accountability implies that cognitive political authority trumps the political will as a ground of pol­it­ ical legitimacy. To accommodate favourable as well as unfavourable epistemic circumstances, I argue in support of a hybrid conception of political legitimacy. This hybrid conception recognizes both the political will and cognitive political authority as possible grounds of legitimacy. I call it the epistemic accountability conception of political legitimacy. It highlights that le­git­im­ ate political decision-­making is subject to epistemic constraints, not just to support from the political will. But, given the challenging epistemic circumstances of pol­it­ics, it also recognizes the limits of cognitive political authority as a ground of legitimacy. In the normal epistemic circumstances of politics, political dis­agree­ments among the citizens are to be expected and legitimate political decision-­ making must respond to well-­ founded disagreements.

Political Legitimacy  9 This way of thinking about political legitimacy is compatible with an important role for democracy in legitimate political decision-­making.5 But the resulting argument for democracy as a ground of political legitimacy is importantly different from more standard arguments, whether moral or epi­stem­ic. The claim is neither that democratic decision-­making is morally necessary for political legitimacy, nor that democracy has epistemic benefits that explain its role in legitimate political decision-­making. Instead, the argument is that the legitimacy of democratic decisions derives from—­and is limit­ ed to—­ the resolution of disagreements that remain when cognitive political authority is epistemically underdetermined. That’s a very important role, as we’ll see, given the epistemic circumstances of politics. But it’s a different take on how democracy contributes to political legitimacy. To sum up, there are different (meta-­normative) answers to the question of  what makes political decisions legitimate. An important distinction is between answers that prioritize the political will and those that prioritize ­cognitive political authority. I argue that what makes political decisions le­git­im­ate depends on the epistemic circumstances. In favourable epistemic ­circumstances, cognitive political authority is the ground of political le­git­im­acy. If cognitive political authority is epistemically underdetermined, however, which is the normal case in politics, then the political will, suitably understood, is the ground of political legitimacy. In those normal epistemic circumstances, legitimate political decision-­making responds to well-­founded disagreements among the citizens, for example through some form of democratic decision-­making. Now that I have introduced some of the main themes of this book, it’s time to turn attention to details of the approach I’m taking. In the next section, I motivate the normative concern with the legitimacy of political decisions. In the following section, I explain the advantages of taking a meta-­normative, rather than a normative, approach to the question of what makes political decisions legitimate.

1.2  The Normative Concern with Political Legitimacy I take it that if a political decision is legitimate, political office holders or other decision-­makers—­e.g. a democratic constituency—­have permission to make 5  It doesn’t require democracy, however, as it’s also compatible with other forms of responding to a diversity of valid political views, for example through some form of sortition (e.g. Guerrero 2014).

10  The Grounds of Political Legitimacy that decision and the decision is binding for the citizens.6 Let me unpack this two-­pronged definition of political legitimacy, first, before using it to discuss the normative concern with political legitimacy. One reason the study of political legitimacy is notoriously difficult is that many different definitions of legitimacy abound. In adopting a two-­pronged approach, according to which legitimacy relates to both a permission to make political decisions and the bindingness of those decisions, I’m broadly following Hanna Pitkin (1966: 39): To call something a legitimate authority is normally to imply that it ought to be obeyed. You cannot, without further rather elaborate explanation, maintain simultaneously both that this government has legitimate authority over you and that you have no obligation to obey it.7

The relevant connection between a permission to make political decisions and their bindingness is sometimes understood as conceptual, for example when the permission to make political decisions is defined, in Hohfeldian terms, as a right to rule that correlates with a duty to obey (Raz 1986). On my understanding, which I will explicate as I develop the epistemic accountability conception, the connection is normative: the normative grounds of the permission to make political decisions are also the normative grounds of the bindingness of those decisions.

(a)  A Right to Rule? I characterize the normative power to make political decisions as a permission, not as a right to rule. If a political decision is legitimate, the decision-­ makers were permitted to make it; if it is illegitimate, the decision-­makers were not permitted to make it. Decision-­ makers may be governments, 6  As an immigrant and non-­citizen resident, I’m well aware that most political decisions a country makes impact on any resident, not just on citizens, and this raises a question about which decisions should be binding for all residents. I experimented with different terminology to do justice to this problem, but didn’t find a satisfactory terminology. In the end I reverted to referring primarily to citizens, and I suggest that “citizen” is read broadly as a stakeholder, in general, which might include non-­citizen residents, for example. 7  While I think some version of this two-­pronged understanding of political legitimacy is widely shared, including by Raz (1986) and Rawls (1993), among others, there are exceptions. Estlund (2008) and Huemer (2012), for example, propose different interpretations. Buchanan (2002) has a good overview of how political philosophers have thought about legitimacy, authority, and obligation, and the relation between them. See also my SEP article on political legitimacy (Peter 2017).

Political Legitimacy  11 government agencies, or individual political office holders. Importantly, in a democracy, they can also be whole democratic constituencies.8 My reason for characterizing this normative power as a permission, rather than as a right to rule, is that I want to emphasize that this normative power depends on context, specifically on the epistemic circumstances in which political decisions are made. The permission to make political decisions can be lost—­and move to a different decision-­making body—­if the context changes.9 Political decisions matter a great deal and one part of the explanation for the distinctive normative concern with political legitimacy is that the permission to make political decisions should thus not come easily. Political decisions shape the lives of large numbers of people, in many respects and often for a long time. Political decisions come in many forms, but here are some of the main examples I’ll be focusing on in this book. First, there are decisions to introduce new laws or reform existing laws. Think of the Brexit decision, which profoundly changed the economic, social, and political relations of the UK with the EU. Or think of the decisions related to pandemic management that governments around the world had to make after the outbreak of Covid-­19. Those decisions had to be made in the face of millions of people’s lives at stake, and they involved measures with the potential to significantly interfere with citizens’ livelihoods, well-­being, rights, and liberties. No less weighty are decisions to appoint political office holders, for example a prime minister or members of parliament. The more powerful the political office is, the weightier the decision. A third type of political decision introduces new policies within an existing legal framework, such as a new welfare policy or a new immigration policy. Even those decisions can be very weighty, as the controversy around the US immigration policy of separating small children from their families has shown. Throughout the book, I will limit my discussion to political decisions made in the context of state-­bound political bodies and constituencies. But I do not mean to imply that the drawing (or redrawing) of political boundaries is not a potentially significant decision, or that there aren’t potentially very significant political decisions to be made at an international or global level, including decisions that concern the relationships between different constituencies, such as decisions on immigration, for example.10 These are all very important political issues. I’m focusing on the national context here because, empirically 8  It is a distinctive feature of democracy that citizens are both the binders and those who are being bound by democratic decisions—­see Hershovitz (2003) on this. 9  For a different view on why a right to rule is too strong, see Applbaum (2019). 10  An excellent recent discussion of these issues can be found in Stilz (2019).

12  The Grounds of Political Legitimacy speaking, that’s where most legitimacy challenges arise. In a political world that would be more institutionally integrated at the international and global level, this would be the wrong focus. But given how the political world is organized now, most political decision-­making power is organized within national political constituencies and I’m taking this as my starting point.11

(b)  The Bindingness of Political Decisions Determining who has permission to make a political decision is one reason why political legitimacy gives rise to a distinctive normative concern. The second reason is determining which political decisions are binding for the citizens. For example, if a democratic decision is legitimate, then all citizens are bound to comply with it, even those citizens who voted against it. Illegitimate decisions do not have this binding force and there might then be grounds for the citizens to take further political action or to engage in some form of civil disobedience. There are different ways in which the bindingness of political decisions is understood. Many understand it in terms of duties (e.g. Raz 1986). Others, more weakly, in terms of being subject to a liability in Hohfeld’s sense (e.g. Applbaum 2019). On the duty account, citizens are under a duty to obey a legitimate political decision. On the liability account, a legitimate political authority has the moral power to create a duty for those under its rule. The citizens can’t claim immunity from a legitimate political authority. But they need not be under an obligation to obey, and this leaves room for civil dis­ obedi­ence even against legitimate political decisions. The two-­pronged def­in­ ition of political legitimacy that I introduced earlier follows the duty account. But I share with the liability account the sense that whether there is a duty to obey a political decision on a particular issue is an important question. There is a further question of what grounds a duty to obey a political decision. The simple answer is that some duties are normatively basic. The more common answer is that the duty to obey a political decision is explained in terms of reasons to act accordingly (e.g. Raz 1986; Rawls 1993; Darwall 2006; Gaus 2011a: 246). While this answer is common, there are important differences among reasons accounts. On one version, favoured by Raz, the duty to 11  Supranational entities with considerable decision-­making powers such as the EU and ASEAN are an important exception to this, however. By taking political boundaries as given, I’m also assuming that the jurisdiction problem does not arise (see Waldron 1993)—I’m focusing on political le­git­ im­acy in relation to governing a given constituency.

Political Legitimacy  13 obey a legitimate political decision is independent of the citizens’ own reason­ ing. On a second version, the bindingness of political decisions depends on the citizens’ own capacity to rationally bind themselves to act as directed. I take an intermediary view on this issue, which I’ll explain when I develop the epistemic accountability conception of political legitimacy. The bindingness of legitimate political decisions has led many political philo­sophers to think that political legitimacy depends on the citizens’ consent and there is a long tradition in political philosophy that associates pol­it­ical legitimacy with the consent of the governed (see Locke 1980 [1690], Rousseau 1988 [1762]). On the consent view, political legitimacy derives from an act of approval (express or tacit) from the citizens. While this is an influential way of thinking about political legitimacy, and I discuss examples in Chapter 2, I  argue in Chapter  6 that the citizens’ consent is neither conceptually nor normatively required for legitimate political decision-­making. There is an important alternative view, which is probably the mainstream view in political philosophy today. On this alternative view, political le­git­im­acy relates to the reasons that justify political decisions or the way in which they are made.12 On the latter, which I call the justificationist view of political legitimacy, the property of political legitimacy is a property of justification of sorts. The conception of political legitimacy that I develop and defend in this book is a version of the justificationist view and an important aim of this book is to explain what sort of justification is at the heart of political legitimacy.13

(c)  Legitimacy as a Property of Political Decisions My definition of political legitimacy characterizes legitimacy as a normative property of political decisions. As my discussion so far has illustrated, I focus, in the first instance, on the legitimacy of political decisions, not on the le­git­ im­acy of the body that makes the decision. It’s important to note that this is merely a methodological commitment, and nothing substantial hinges on this. If we take a decision-­centred approach, the legitimacy of a political authority is explained in terms of the legitimacy of the decision it makes. If we

12 Horton (2012) draws a similar distinction and labels the two views the libertarian and the Kantian views of political legitimacy. 13  I’ll comment on the distinction in a number of places below, but a full discussion of my objections to consent theory and my argument in favour of a justificationist theory can be found in Chapter 6.

14  The Grounds of Political Legitimacy take an institution-­centred approach, the legitimacy of political decisions is explained in terms of the legitimacy of the political authority. Both approaches are common in the literature on political legitimacy.14 But I think the decision-­centred approach to political legitimacy is an attractive starting-­point for investigating alternative conceptions of political legitimacy because it makes only minimal assumptions about the concept of legitimacy. Most importantly, unlike institution-­centred approaches, it does not presuppose a particular account of the institutions in which political decisions are made. For example, it does not tie legitimate political decisions to a particular type of state, say a democratic state. As such, the view lends itself to examining a broad range of conceptions of political legitimacy and of the political institutions they support. It might be objected that the decision-­centred approach is at odds with the rich tradition in political thought, going back at least to Hobbes, that takes political legitimacy to be a property of political institutions such as states. But the tension is only apparent. As a methodological tool, the decision-­centred approach that I adopt does not presuppose a particular substantive account of the relationship between legitimate political decisions and the political institutions in which they are made. It is compatible with an approach that sees the legitimacy of political decisions as determined by properties of the institutions in which they are made. Even an account that centres on the problem of justifying the state, for example, will ultimately distinguish between le­git­im­ate political decisions—­those made by a state that satisfies certain conditions—­and illegitimate political decisions. To add a further point of clarification, note that the normative property of legitimacy should be distinguished from other normative properties that political decisions might have. Of particular interest are properties such as being morally right or just, legal, or efficient. While political legitimacy might not be completely independent of these other normative properties, it is a distinct normative concern. The question how legitimacy relates to these other normative concerns is thus non-­trivial. The difference between legitimacy and the normative property of legality is worth dwelling on a bit further, as this sometimes creates confusion. A pol­it­ical decision is legal if it has been made in conformity with relevant law. For example, the Biden election was legal because relevant election law was upheld in all US states. An illegal political decision, by contrast, violates relevant political law. Political legitimacy doesn’t refer to relevant law, at least 14  The decision-­centred approach is also common in economics (e.g. Sen 2017).

Political Legitimacy  15 not in the first instance. Instead, it refers to a conception of political legitimacy. A legitimate political decision is a decision that satisfies the conditions of the correct conception of political legitimacy. If the correct conception requires democratic presidential elections, for example, then a decision that satisfies the relevant condition(s) is legitimate. The correct conception of political legitimacy might or might not be reflected in relevant law—­for example in election law. If it is, then legitimacy and legality coincide. If it is not, then the two might come apart. It’s a further illustration of the distinctive normative concern with political legitimacy that legal decisions might be illegitimate. If they are, the decision-­ makers are legally permitted to make the decision, and the citizens and other residents are legally bound to obey that decision, but what is legally sanctioned deviates from what legitimacy would entail about what’s permissible and obligatory. The normative concern with political legitimacy thus offers a platform from which the law, including the law regulating political decision-­ making, can be critically scrutinized. In sum, I’ve described political legitimacy as a normative property of pol­it­ical decisions. If a political decision has this property, there is a permission to make that decision and the decision is binding. Political decisions might also have further normative properties, but the concern with legitimacy is distinct from other normative concerns we might have, including in the pol­it­ical domain.

1.3  The Meta-­normative Perspective Given that political legitimacy is an important normative concern, we might ask how political legitimacy relates to other normative concerns. In this book, I will take a meta-­normative approach to the question of what makes political decisions legitimate, focusing on what I call the grounds of political legitimacy.

(a)  Normative versus Meta-­normative Approaches Many debates in political philosophy tend to take place at the first-­order level, including debates about political legitimacy. How important are democratic values—­such as freedom and equality—­for political legitimacy? What is more important for legitimate decision-­making, that political decisions are just or welfare-­ enhancing, or that the decision-­ making process respects certain

16  The Grounds of Political Legitimacy political rights? Are citizens bound to obey unjust political decisions, or can only just decisions be legitimate? These are just some examples of how pol­it­ ical philosophers have debated political legitimacy, focusing on first-­order considerations such as values, rights, and obligations. These first-­order questions are important, and they lead to illuminating distinctions among competing conceptions of political legitimacy. Consider the relationship between legitimacy and justice as an example. Most political philosophers—­but not all!—accept that a legitimate political decision need not be just.15 But what about a just decision? Is it necessarily legitimate? Some philosophers answer yes (e.g. Rawls 1995). They take the view that justice has the same normative foundations as legitimacy, but justice is more demanding than legitimacy. Other philosophers answer no (e.g. Simmons 2001). On that view, the normative foundations of legitimacy are different from the normative foundations of justice. Justice and legitimacy just make different normative demands on political decision-­making. A further distinction among conceptions of political legitimacy originates at the meta-­normative level, not at the (first-­order) normative level, and that distinction cuts across distinctions at the normative level. Conceptions of political legitimacy differ depending on what they take to be the source of the normativity of this particular property of political decisions. For example, how important are subjective considerations—­such as consent or the accessibility of the justification for political decisions—­ relative to objective considerations—­such as the intrinsic rightness of a political decision? The meta-­normative approach foregrounds questions such as the following. Does political legitimacy necessarily relate to what the citizens want from their government, or to what they reasonably judge the government should do? Could a political decision be legitimate even if the majority of the citizens oppose it? Does it matter for the political legitimacy of a government whether the decisions it makes are, in fact, the right ones, quite independently of what anyone thinks? Does legitimate decision-­making presuppose that citizens and governments are well informed? The meta-­normative approach that I take in this book is less common in political philosophy than the normative approach, but political philosophers have previously examined meta-­normative aspects of theories of political legitimacy. As I read John Rawls’ work, for example, one of its key contributions lies in his theory of political justification (Rawls 1993). So-­called realist theories of political legitimacy have also highlighted meta-­normative issues, 15  Buchanan (2002) argues that political legitimacy is a criterion of minimal justice.

Political Legitimacy  17 primarily in relation to the question whether there is a distinctively political normativity.16 What seems to be missing in both those traditions, however, is an examination of how the normativity of political legitimacy intertwines with how philosophers think about normativity in other domains—­especially in meta-­ethics and in epistemology.17 One of my main aims in this book is to offer an account of the normativity of political legitimacy that is continuous with other work on normativity while still accounting for the distinctive features of the political realm. As I hope will become clear, taking a meta-­normative approach offers a fresh perspective on political legitimacy. It allows us not only to make progress in understanding why political legitimacy matters and what it requires. It also allows us to discuss pressing legitimacy-­related political issues, such as the role of experts in political deliberation and political decision-­making, the epistemic responsibilities of citizens, the dangers of authoritarianism, and the difference between populism and democracy.

(b)  Grounds of Political Legitimacy When we explore the grounds of political legitimacy, it is striking how many political philosophers, today and throughout the history of modern political philosophy, take political decisions to be legitimate in virtue of how they respond to the citizens’ will. The political will may depend on the citizens’ consent or involve some other form of approval, for example through democratic decision-­making, and it may be the citizens’ actual will or a hypo­thet­ ic­al will. The ground of political legitimacy, on what I call will-­based, or voluntarist, conceptions, is given by the citizens’ own political judgments, regardless of any factual or epistemic constraints on their validity. The political will, however important, is not the only possible ground of political legitimacy. A first alternative account of the ground of political le­git­im­acy—­of what a permission to make binding political decisions is based on—­takes normative facts as the ground of political legitimacy. According to  fact-­based conceptions of political legitimacy, political decisions are

16  See e.g. Rossi and Sleat (2014), Leader Maynard and Worsnip (2018), Aytac (2022), and Fossen (2022) on this. 17  Pragmatist political philosophy is an important exception here—­see Misak (2000) and Talisse (2007, 2009). Another important exception is Gaus’ work (see Gaus 1996, in particular, and also Gaus 2011a). See also Fuerstein (2012), Enoch (2015), and Ferretti (2018), among others. I’ve outlined the meta-­normative approach that I’m taking in this book in Peter (2020).

18  The Grounds of Political Legitimacy le­git­im­ate in virtue of being the right decisions, presupposing that there is a sense in which political decisions can be right or wrong independently of what the citizens believe or otherwise judge to be right. Right decisions, in other words, are the decisions favoured by the normative facts in given circumstances. For example, on a factualist view, if the normative facts warrant a certain reform of the tax system, say because the current system is unjust, then a decision to reform the tax system accordingly is legitimate because it is the right thing to do. I also call this account of the grounds of political le­git­ im­acy factualism about political legitimacy, to mirror analogous positions in ethics and epis­tem­ol­ogy in relation to the grounds of justified action or belief.18 A second alternative to will-­based conceptions are conceptions that take political legitimacy to depend on the decision-­makers being in a position of epistemic advantage regarding the question of what political decision is, in fact, the right decision in a given situation. Earlier, I called this position cognitive political authority. This type of conception of legitimacy is belief-­based, not fact-­ based—­ an important distinction. I also call them cognitivist (Landemore 2013). Belief-­based conceptions of political legitimacy underpin epistocratic conceptions (e.g. Brennan 2016) as well as some conceptions of epistemic democracy. An important advantage of the meta-­normative approach to political le­git­ im­acy that I’m taking here is that there are only three main accounts of the grounds of political legitimacy: normative facts, cognitive political authority, and the political will. This simplifies the inquiry greatly. To see better why these are the three main alternatives, consider the following set of questions. First, are the political judgments of at least some citizens part of the ground of political legitimacy or not? If the answer is that such judgments are irrelevant, we have what I’ve called factualism about political legitimacy. On this account of the ground of political legitimacy, political decisions are legitimate in virtue of being the right decisions, but not in virtue of what citizens believe about those decisions or in virtue of which decisions they support. If we reject attitude-­independent normative facts as the ground of political legitimacy, as I’ll do in Chapter 3, this leaves us with an account of the ground of political legitimacy that is attitude-­dependent. We then need to consider whether the relevant attitudes are theoretical—­ beliefs—­ or practical. Are political decisions legitimate in virtue of having been made on the basis of beliefs that track the right decisions sufficiently well, or in virtue of 18  E.g. Littlejohn (2012) and Scanlon (2014).

Political Legitimacy  19 responding to the citizens’ own political judgments (actual or hypothetical)? Answering this question leads us to either belief-­based or will-­based conceptions of political legitimacy. Because there aren’t many possibilities to consider, the meta-­normative perspective allows us to focus on a small number of key questions and it promises significant progress in answering the question of what makes political decisions legitimate.

(c)  Types of Ought We can further illuminate the distinction between the three main grounds of political legitimacy by drawing attention to Derek Parfit’s distinction between three types of ought (Parfit 2011: 150f.). The first, the fact-­relative ought, captures what the normative facts imply ought to be done in a given situation. This type of ought is involved in what I’ve called political factualism, as fact-­ based conceptions explain a permission to make binding political decisions in terms of the normative facts that obtain in a particular situation. The second type of ought that Parfit identifies, the evidence-­relative ought, captures what the available evidence implies should be done in a given context. Belief-­based conceptions of political legitimacy, as I understand them, ground the permission to make binding political decisions in being in an epistemically advantageous position relative to what the evidence implies should be done. The legitimacy of a political decision depends on how well the decision-­makers’ beliefs—­or the beliefs of their advisors—­track the evidence that is available about which political decision the normative facts favour in the circumstances. Such cognitivist conceptions highlight that a government or other decision-­making body that fails to respond appropriately to available evidence does not have cognitive political authority and thus lacks a permission to make binding political decisions. Parfit calls the third type of ought a belief-­relative ought, but that ter­min­ ology clashes with the terminology I’m using here. This third type of ought is a judgment of what should be done that is relative to a given doxastic state. I propose we call this third type the practical ought. Will-­based conceptions marshal this practical ought, as they attribute a fundamental normative power to the citizens’ own political judgments, without imposing factual or epi­ stem­ic constraints on the validity of their judgments. So on those conceptions, the permission to make political decisions and the obligation to obey depend on how political decision-­making responds to the citizens’ own political judgments.

20  The Grounds of Political Legitimacy

(d)  The Normative Role of Political Deliberation The meta-­normative perspective is helpful not only to distinguish between different accounts of what grounds a permission to make binding political decisions. It also sheds light on the normative role of political deliberation. Political deliberation is a collective reasoning process in which citizens scru­ tin­ize past political decisions and proposals for new political decisions as well as the actions of political decision-­makers. But how, exactly, does political deliberation contribute to legitimate political decision-­making? We’ll see that there are will-­based and belief-­based answers to this question that deserve to be taken seriously. According to the former, exemplified by classic deliberative democracy theories, the normative role of political deliberation relates to reaching an agreement among the citizens (e.g. Gutmann and Thompson 1996). According to the latter, exemplified by some theories of epistemic democracy, it’s the epistemic value of well-­conducted political deliberation that matters (e.g. Landemore 2013). I engage with this issue in Chapters 6 and 7, where I argue for a theory of political deliberation that combines elements of both.

(e)  Procedure versus Substance Having explained the meta-­normative approach that I’m taking in this book, we now need to consider how it can illuminate debates about political le­git­im­acy that centre on first-­order normative considerations. In particular, it might be objected that the distinctions drawn at the meta-­normative level merely mirror distinctions drawn at the first-­order level. If that were the case, exploring the grounds of political legitimacy would not illuminate existing debates. Someone pushing this objection might argue that the distinction that I am drawing between different grounds of political legitimacy is just a restatement of the procedure versus substance distinction that has long occupied debates on political legitimacy (Cohen 1997a). Will-­based conceptions are pro­ced­ ural, the objection might hold. According to those conceptions, the le­git­im­ acy of political decisions derives from appropriate political decision-­making procedures, for example democratic procedures. Belief-­based and fact-­based conceptions, by contrast, the objection continues, are substantive, as they relate political legitimacy to the quality of the decisions made. If this objection was warranted, then the meta-­ normative perspective would just add an unnecessary terminological layer. Not much would be

Political Legitimacy  21 gained from exploring the distinction between different grounds of political legitimacy that cannot be explored at the level of the distinction between pro­ ced­ural and substantive conceptions of political legitimacy. A bit of reflection shows that the distinction between the grounds of pol­it­ ical legitimacy and the procedure and substance distinction cut across each other. First, note that the objection lumps together both fact-­based and belief-­ based conceptions. I think that there is an important difference between them, as I’ll explain in Chapters 3 and 4. In addition, even if we ignore fact-­ based conceptions and focus just on will-­based and belief-­based conceptions, this opens up a two-­by-­two matrix of alternative conceptions of political legitimacy. Will-­based conceptions of legitimacy may be either substantive or procedural. And belief-­based conceptions, too, come in substantive and pro­ ced­ural variants. To see this, consider procedural conceptions of political legitimacy first. As I now understand those conceptions, they hold that some kind of decision-­ making procedure—­for example a democratic procedure—­is necessary for political legitimacy. On purely procedural conceptions, the procedure is also sufficient. Many will-­based conceptions of legitimacy are indeed procedural, as I’ll explain in more detail later. But belief-­based conceptions can also be procedural. Some epistemic theories of democracy are a case in point (e.g. Landemore 2013; Goodin and Spiekermann 2019). They support a procedural conception of political legitimacy because they see democratic decision-­ making procedures as necessary for political legitimacy. But they do not account for legitimacy on voluntarist grounds. The classic version of epi­ stem­ic theories of democracy, going back to the marquis de Condorcet, holds that what makes democratic decisions legitimate isn’t that they are an appropriate expression of the political will. Instead, it is democracy’s ability to tap into what is informally called the wisdom of the crowds. The conceptions of political legitimacy that underly those theories are thus not will-­based; they are belief-­based. The ground of political legitimacy is the superior ability of democratic procedures to select correct beliefs about what the right decision is in given circumstances.19 19  There’s a related distinction between the instrumental and the intrinsic value of democracy. Standard epistemic theories of democracy are typically interpreted as valuing democracy instrumentally, for its ability to make the right decisions, in contrast to theories that see democracy as in­trin­sic­ al­ly valuable (e.g. Christiano 2008). The distinction I’m focusing on here is whether (democratic) procedures are necessary for political legitimacy or not. Standard epistemic theories of democracy answer that they are because they outperform other decision-­making procedures. Substantive theories of political legitimacy, by contrast, hold that political legitimacy doesn’t depend on a particular decision procedure; only on the outcomes.

22  The Grounds of Political Legitimacy A similar comment can be made in relation to conceptions of political legitimacy that prioritize substance over procedures. Many belief-­based conceptions indeed prioritize substance, and Raz’ service conception that I have already mentioned, and that I’ll discuss in more detail later, is a good example (e.g. Raz 1986). But some will-­based conceptions also prioritize substance. The public reason conception put forward by Gerald Gaus (2011a), which takes political legitimacy to depend on whether the citizens’ reasons for supporting particular decisions converge, is a good example.20 What confers legitimacy, on this conception, is not a collective decision-­making procedure, but the fact that political decisions are supported by reasons of the right kind. These examples show that distinctions between competing conceptions of political legitimacy drawn at the first-­order level might obscure important differences at the meta-­normative level. Theories of democratic legitimacy, while procedural, may be either will-­based or belief-­based. And theories of political legitimacy that relate political legitimacy to the substantive justification of political decisions may also be based on different accounts of the grounds of political legitimacy—­ some more subjective and others more objective. Before we can consider the relative significance of procedures and outcomes for political legitimacy, we thus need a better grasp of the grounds of political legitimacy: are political decisions legitimate in virtue of how they respond to the citizens’ will, or to cognitive political authority, or in virtue of being warranted by normative facts? In short, the methodological framework that I’m relying on in this book allows us to take a fresh look at the question of what makes political decisions legitimate. The question itself is by no means new, of course. But the benefits of taking a meta-­normative approach to answering this question remain underexplored, and re-­examining the question of what makes political decisions legitimate is important in light of both authoritarian and populist pressures on democracy. As I hope will become clear, focusing on the grounds of political legitimacy reveals that there is a previously overlooked but promising answer to the question of what makes political decisions legitimate.

20  Gaus’ public reason conception of political legitimacy takes political decisions to be justified in virtue of a convergence of reasons. Some of Rawls’ writing suggests such a view, e.g. Rawls (1993); see Peter (2009) for a critical discussion.

2 The Political Will Does political legitimacy ultimately depend on how political decision-­making responds to the will of the citizens? In this chapter, my first aim is to shed light on the richness of this important tradition of thinking about political legitimacy. I then discuss the normative significance of the political will. Why have so many thought that the political will is the ground of political le­git­im­ acy? I trace this back to the assumption that citizens are equally politically authoritative. In the final section of this chapter, I push back against the idea that citizens are always equally politically authoritative, which leads me to conclude that the political will can’t be the only ground of political legitimacy. The problem that all will-­based conceptions face, and which current his­tor­ ic­al developments make vivid, is that they are at risk of supporting undue arbitrariness in political decisions.

2.1  Will-­Based Conceptions of Political Legitimacy Will-­based conceptions, as we saw, take political decisions to be legitimate in virtue of how they respond to the political will, understood as some reflection of the political judgments of the citizens. I also call those conceptions voluntarist. In this section, I give an overview of will-­based conceptions. For clarification, I understand such conceptions as committed to an inclusive political voluntarism: what makes political decisions legitimate is how they respond to the citizens’ will. Inclusive political voluntarism contrasts with the exclusive political voluntarism found in divine command theories, but I won’t discuss the latter in this book. Applied to the political context, a divine command theory holds that legitimate political decisions are those willed by God.1

1  A version of the divine command theory of political legitimacy can be found in ancient Chinese philosophy. Both Confucius and Mencius held that a “mandate of heaven” underpins legitimate pol­it­ ical rule; see Nuyen (2013).

The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0002

24  The Grounds of Political Legitimacy

(a)  The Invention of the Political Will It was primarily from the 17th century onwards that the citizens’ will came to be seen as the main ground of political legitimacy. This development parallels what J. B. Schneewind (1998) calls the invention of individual autonomy in moral philosophy. Influential early developments of the idea that the political will is the ground of political legitimacy can be found in the works of Hugo Grotius, Thomas Hobbes, and Samuel Pufendorf, for example (see Hampton 1998; Schneewind 1998). Hugo Grotius, in On the Law of War and Peace, describes this way of thinking about political legitimacy as follows: as there are several Ways of Living, some better than others, and every one may chuse which he pleases of all those Sorts; so a People may chuse what Form of Government they please: Neither is the Right which the Sovereign has over his Subjects to be measured by this or that Form, of which divers Men have different Opinions, but by the Extent of the Will of those who conferred it upon him.  (cited by Tuck 1993: 193)

This passage illustrates the core commitment of will-­based conceptions very well, it being that political legitimacy must be grounded in the citizens’ will. As Grotius frames it, the “Right which the Sovereign has over his Subjects” is derived from the “Will of those who conferred [this right] to him,” i.e. the citizens. The passage also hints at an argument for this core claim, which is that because there is no authority beyond the citizens’ will on how to live, the only ground for the legitimacy of political decisions is accordance with the citizens’ will. Building on this, we can thus also characterize will-­based conceptions as committed to the citizens’ equal political authoritativeness. Given the equal political authoritativeness of the citizens, will-­based conceptions take political decisions to be legitimate in virtue of how they respond to the citizens’ own political judgments. The passage I just quoted also highlights some further key features of what I call will-­based conceptions of political legitimacy. One is that they construe the problem of political legitimacy as a practical problem, focusing on the citizens’ ability to make their own choices and forming their own judgments about what should be done. The will, as I understand it, is a practical faculty, involved in deciding what to do. I exercise my will if I decide on one course of action over another, for example if I decide to continue working on this book instead of taking the day off. Of course, sometimes we act in ways that resemble knee-­jerk reactions and acting in these ways will partially or fully bypass

The Political Will  25 the will. Our choices may also sometimes be more illusory than real, driven by sub-­personal processes we don’t fully control. Even so, the need to choose how to act is often very real and unavoidable, and the will is the faculty through which we settle what to do. A further feature of will-­based conceptions of political legitimacy is that they foreground potential disagreements among the citizens on how to choose. As Grotius also makes clear in the passage just quoted, citizens who exercise their will well might end up favouring different political decisions, thus disagreeing with each other about what political decision should be made. If the citizens’ wills have the potential to conflict, this raises the question of how to adjudicate between those potentially conflicting judgments. Will-­based conceptions take this to be the key problem for the legitimacy of political decisions.2 Responding to the citizens’ will can take many different forms and different will-­based conceptions favour different forms of adjudication between the citizens’ wills. Importantly, there are what I call justificationist and consent versions of will-­based conceptions, drawing on a distinction I introduced in Chapter 1. Will-­based conceptions of political legitimacy that are committed to the consent view link the citizens’ will to their capacity to express or withhold consent. Justificationist versions link the citizens’ will to their capacity to respond to reasons. This is an important distinction, but a proper discussion of this distinction has to wait until Chapter 6 (Section 6.1). In this section, my aim is to give an overview of the three main categories of will-­based conceptions, to shed light on the richness of this tradition. We can identify three main categories of will-­based conceptions, and I’ll discuss them in turn: unanimity conceptions, public reason conceptions, and participation conceptions.3

(b) Unanimity Historically, the most important category of will-­based conceptions is that of unanimity conceptions. In general, unanimity conceptions take political decisions to be legitimate in virtue of them having been made unanimously—­or at least near-­unanimously—­or if the decisions themselves, or the way in 2  I use the term “adjudication” as a neutral description of responding to the citizens’ will; adjudication might include aggregation through voting, collective deliberation, finding consensus, seeking consent, etc. 3  This list is not intended to exclusive and there might also be mixed conceptions.

26  The Grounds of Political Legitimacy which they are made, attract unanimous, or near-­unanimous consent, whether it’s expressed or tacit. Unanimity conceptions have been influentially articulated in the early social contract theories, for example by Hobbes, or in the works of John Locke and Jean-­Jacques Rousseau.4 According to Hobbes, the ground of political legitimacy is the consent of all citizens to a social contract. The social contract is necessary to create political authority and, as a result, the possibility of legitimate political decisions (Hampton 1998). In making his argument for the normative significance of consent, Hobbes compares the state of nature with the civic state. In the state of nature, the citizens are free to act on the basis of their own wills. But they are also under threat from each other—­life in the state of nature is “nasty, brutish, and short,” Hobbes writes in the Leviathan (2017 [1651]). The citizens can protect themselves by giving away their natural liberty right and consenting to be ruled by a political authority. Their unanimous consent is the ground of political legitimacy because it creates a political authority that is entitled to decide on behalf of the citizens and make binding decisions.5 As Hobbes puts it (2017 [1651]: 17.13): “the only way to erect a commonwealth [a political authority] is by conferring all [the citizens’] power and strength upon one man, or upon one assembly of men, that may reduce all their wills . . . unto one will.” Many have argued that Hobbes fails to distinguish adequately between legitimacy-­ conferring consent and mere submission (Hampton 1998). If they’re right, then Hobbes collapses the distinction between legitimate pol­it­ ical decisions and the decisions of a de facto, but not legitimate, authority. But be this as it may, because Hobbes doesn’t make many demands on the type of consent that can give rise to legitimate political decisions, we can call his view a brute unanimity view. In Locke’s version of a will-­based conception of political legitimacy, the normative significance of the citizens’ equal political authoritativeness comes clearly into view. We might call Locke’s view a qualified unanimity view. For Locke, what I call the citizens’ equal political authoritativeness is enshrined in the moral law that governs the state of nature. In this state of nature, all individuals are equally free to act within the constraints of natural law

4  I deliberately left out Kant’s conception of political legitimacy here, although important, because I interpret it as an early version of a public reason conception. 5  “and when a man hath in either manner abandoned or granted away his right, then is he said to be OBLIGED or BOUND not to hinder those to whom such a right is granted or abandoned from the benefit of it; and [it is said] that he ought, and it is his DUTY, not to make void that voluntary act of his own” (Hobbes 2017 [1651]: 14.7).

The Political Will  27 and no individual is subject to the will of another. As Rawls (2007: 129) ­characterizes Locke’s understanding of the state of nature, it is “a state of equal right, all being kings.” Natural law, while manifest in the state of nature, is not sufficiently specific to rule a society and cannot enforce itself when violated, however. Again the problem of disagreement and conflict looms. The solution to this problem is a social contract that transfers authority to a political body—­e.g. a civil state—­ that can realize and secure the natural law. And the political decisions that this body might make will be legitimate in virtue of the individuals’ consent: “no one can be put out of this estate and subjected to the political power of another without his own consent” (Locke 1980 [1690]: 52). And anyone who has given their express or tacit consent to the social contract is bound to obey a state’s laws (Locke 1980 [1690]: 63). Rousseau presents another version of a qualified unanimity view. Compared to Hobbes and Locke, Rousseau focuses more directly on the question that is also at the heart of this book, namely the question of what makes political decisions legitimate. Rousseau famously gave a democratic answer to this question. Political decisions are legitimate, on Rousseau’s view, in virtue of them having been made in democratic fashion and reflecting what Rousseau calls the general will. As Rousseau writes: The engagements that bind us to the social body are obligatory only because they are mutual . . . the general will, to be truly such, should be general in its object as well as in its essence; . . . it should come from all to apply to all.6

The general will, which confers legitimacy to political decisions, is general in two senses. It is general with regard to its source—­the general will is the will of the citizen-­body as a whole. And it is general with regard to its content—­ the will reflects the common good, rather than some partisan interests. The latter idea of generality also qualifies the former, in the following way. Rousseau distinguishes between a citizen’s private will, which reflects personal interests, a citizen’s general will, which reflects an interpretation of the common good, and the general will, which truly reflects the common good. The citizens’ will that confers legitimacy to political decisions is their interpretation of the common good, rather than their own private interests. The emphasis on democracy raises a question, however, as democratic decisions are not normally unanimous. So why would those who oppose a 6  Rousseau (1988 [1792]: II:4). See also Rousseau (1988 [1792]: I:3) and Rawls (2007: 231f.).

28  The Grounds of Political Legitimacy particular decision be bound by that decision? And in what sense is Rousseau’s version of a will-­based conception of legitimacy an instance of an unanimity conception? The answer to these questions is the following. On Rousseau’s view, citizens can—­and will want to—­learn from democratic decisions. Since the democratic decision, if conducted properly, correctly reveals the general will, those who voted against a particular proposal will recognize that they were mistaken about the common good and will adjust their beliefs about what the general will is. In this ingenious way, individuals are only bound by their own will, but everyone is bound by a democratic decision.7 Good examples of versions of the unanimity view in contemporary pol­it­ ical philosophy can be found in contributions from James Buchanan and Gordon Tullock (1962), Leslie Green (1988), John Simmons (2001, 2005), Amanda Greene (2016), and Anna Stilz (2019). In all those proposals, it is either unanimous decision-­making or some form of consent that is taken to be the right way of adjudicating between the citizens’ wills and, therefore, as the ground of political legitimacy.

(c)  Public Reason In contemporary philosophy, an important alternative to unanimity conceptions are public reason conceptions. The difference between unanimity conceptions and public reason conceptions is that the latter focus on the reasons that justify political decisions or the ways in which they are made, whereas the former focus either on the citizens’ endorsement as such—­of particular decisions or of the way in which they are made—­or on their rational choice. Contemporary public reason conceptions, which were foreshadowed by Kant in his writings on political philosophy, have their origin in the conception of political legitimacy that John Rawls put forward in Political Liberalism (1993) and elaborated on in his “Reply to Habermas” (1995) and in Juergen Habermas’ work on deliberative democracy (Habermas 1996). Rawls’ version of a will-­based conception of legitimacy has the following “liberal principle of legitimacy” at its core (Rawls 1993: 137):

7  This part of Rousseau’s argument incorporates elements of a belief-­based conception of political legitimacy, and there are parallels to the sort of arguments that epistemic democrats make; see Grofman and Feld (1988) and footnote 16 in this chapter.

The Political Will  29 Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.

This characterization of the liberal principle of legitimacy contains quite a few technical terms that would take too long to unpack here. But, translated into the terminology I am using in this book, it claims that political decisions are legitimate in virtue of how they respond to what citizens, understood as reasonable persons, can agree on. A reasonable person, according to Rawls, is willing to propose and abide by fair terms of cooperation—­terms of co­oper­ ation that all citizens can agree on—­and accepts that the search for such an agreement is affected by epistemic limitations (by the “burdens of judgment”).8 The relevant agreement is on the basis of reasons that all citizens, understood as reasonable persons, can share. So the liberal principle of legitimacy specifies that political decisions are legitimate only if they are made in accordance with a constitution that is justified by reasons that all reasonable persons can share. Generally speaking, public reason conceptions treat the property of le­git­im­acy as dependent on the—­procedural or substantive—­reasons that reasonable persons have. Public reasons are either reasons that all reasonable persons share, as in Rawls’ original public reason conception of legitimacy, or, while they are not shared, support the same political decision or decision-­ making procedure.9 What all public reason conceptions of political legitimacy have in common is that they take public reasons to justify a political decision—­or the decision-­making process—­and this justification is thought to constitute the property of legitimacy.10

(d) Participation According to participation conceptions, a third main category of will-­based conceptions, political decisions are legitimate in virtue of them having been 8  See Rawls (1993: lecture II). 9  The distinction I am drawing here is sometimes called the distinction between consensus and convergence accounts of public reason (Vallier 2011, see also Vallier and Muldoon 2021). Rawlsian conceptions are called consensus conceptions (e.g. Quong 2011 and Hartley and Watson 2018), while Gaus (2011a) is the main example for a convergence conception. 10  See Simmons (2001) for an influential critique of public reason conceptions of political le­git­im­acy, focusing on Kant and Rawls, in particular.

30  The Grounds of Political Legitimacy made in a process that allows for the equal participation of all citizens. To paraphrase Bernard Manin (1987), what participation conceptions have in common is that they see political legitimacy as dependent on the participation of all, not on the unanimous will of all or on the reasons all citizens have. A classic discussion of participation as a source of political legitimacy is found in Carol Pateman (1970). Pateman criticizes the dominant theory of democracy of her time, due mainly to Schumpeter (1942), for unduly restricting the citizens’ opportunities to express their will. Her alternative, participatory conception of political legitimacy focuses on the educational effects of political participation. Pateman argues that active participation of the citizens in all aspects of political decision-­making is necessary to enable citizens to acquire essential democratic skills. Acquiring those skills then allows them to have an equal say and that ensures that democratic decision-­making appropriately reflects the political will. Less participatory forms of democracy can’t ensure political legitimacy because they only reflect the political will of an elite.11 Many recent defences of democracy also rely on a participation conception of political legitimacy. David Viehoff (2014), for example, argues that democratic decisions are legitimate in virtue of them being made via procedures that give all citizens an equal say.12 As he puts it (2014: 374): democratic decisions at least sometimes have special authority because they are made by procedures in which all citizens have an equal say. But, contrary to what one might expect . . ., this is not because equality requires us to treat other people’s judgments as reasons for action. It is, rather, because, by treating as binding the outcome of an egalitarian decision procedure, we can avoid acting on various considerations—­in particular, unequal power—­that we have reason to exclude from our relationship.

As the quote highlights, this participation conception doesn’t trace political legitimacy to either the citizens’ unanimous consent or to the reasons they have to support a political decision. Instead, it traces it to a decision-­making procedure that affords all citizens an equal say, protecting them from being subject to unequal power relations. Strongly procedural deliberative democratic conceptions (e.g. Manin 1987), as well as Philipp Pettit’s equal control view of political legitimacy 11  For a nuanced discussion of representative democracy, see Urbinati (2006). 12  Kolodny (2014a, 2014b) defends a similar view; see also Buchanan (2002).

The Political Will  31 (Pettit 2012) are also good examples of participation conceptions. They build on the premise that the response to the citizens’ potentially conflicting wills is via a decision-­making procedure that protects the citizens’ equal freedom to express their wills. According to Pettit, what is key for political legitimacy is that political decisions are made in the right way, without suppressing anyone’s political freedom. Democracy, he argues, is uniquely able to ensure the citizens’ non-­domination. This short overview served to illustrate the diversity of will-­based conceptions and the variety of interpretations that defenders of those conception have offered for how the political will bears on political legitimacy. In the next section, I will further probe their core claim, that political decisions are le­git­ im­ate in virtue of how they respond to the citizens’ will. Once we have a clearer understanding of what will-­based conceptions have in common, we can then consider an objection that targets all will-­based conceptions, and that aims to show that the political will can’t be the sole ground of political legitimacy, in the final section of this chapter.

2.2  Equal Political Authoritativeness Why think that the political will is the ground of political legitimacy? To many, the answer might seem obvious: where, other than from the citizens themselves, could a permission or a right to make binding political decisions originate? If political decisions are to settle what citizens can and can’t do, doesn’t the legitimacy of those decisions ultimately depend on the citizens? As we shall see more clearly in later chapters, while this is a common line of thought in political philosophy, this is not the only way to think about the ground of political legitimacy. There are two important alternative accounts. But before we consider those, it’s worth getting clearer on the appeal of will-­ based conceptions.

(a)  Self-­Originating Sources of Valid Claims As I see it, the best way to characterize will-­based conceptions of political legitimacy is via their core meta-­normative commitment to the fundamental equal political authoritativeness of the citizens. Historically, we find this commitment articulated in Locke’s phrase of all citizens “being kings” (1980 [1690]: 66), for example. In the contemporary literature, perhaps the most

32  The Grounds of Political Legitimacy memorable articulation is Rawls’ characterization of citizens as capable of being “self-­originating sources of valid claims.”13 Stephen Darwall, building on Rawls, articulates the core commitment of will-­based conceptions of pol­it­ ical legitimacy as follows (2010: 278): The basic premise underlying any successful justification of differential authority . . . is that we share a common basic authority to make claims of each other just by virtue of being persons. Or, as Rawls put the point, to be a person is to be a ‘self-­originating source of valid claims’.

In a political context, valid claims, I take it, are political judgments—­ judgments about what should be done—­that have some normative force. Specifically, they have the potential to impact on legitimate political decision-­ making—­to contribute to the legitimacy of a decision, or to undermine a decision that would otherwise have been legitimate.14 If citizens are self-­ originating sources of valid political claims, this implies that all citizens enjoy an equal political authoritativeness, with no citizens being in a superior—­ more authoritative—­position in relation to legitimate political decision-­making. Gerald Gaus (2011a: 15) articulates the commitment to equal au­thori­ta­ tive­ness as follows, highlighting the moral dimension of political decisions: moral persons are all equally authoritative interpreters of the demands that morality places on one. This . . . is not to say that they are all equally correct, or that one person’s judgment is as good as the next. The claim is about the lack of authority of another’s judgment over one’s view of the demands of morality.

In taking the citizens as equally politically authoritative, as persons capable of being “self-­originating sources of valid claims,” or as “equally authoritative interpreters” of what should be done, what is denied, in the first instance, is that the source of political legitimacy is how well political decisions track some normative facts that obtain in given circumstances, independently of the citizens’ own will-­formation processes. Instead, the idea is that the ­permission to make binding political decisions derives from the exercise of  the citizens’ own political judgment. Using terminology from Chapter 1 13  Rawls (1980: 543). Rawls introduced this conception of the person in his essay on Kantian constructivism, but he remained committed to it in later work (e.g. Rawls 1993: 32). 14  I’ll have a lot more to say on how to understand the validity of political judgments in Part II of the book, when I discuss political deliberation.

The Political Will  33 (Section 1.3), we can also say that the type of ought that underpins political legitimacy is neither fact-­relative nor evidence-­relative. Political legitimacy, according to will-­based conceptions, is tied to the practical ought as it is determined from the perspective of each citizen. To be sure, as also highlighted in the quote from Gaus, will-­based conceptions of political legitimacy need not be committed to treat all expressions of the citizens’ will as normatively significant. If citizens yield to selfish impulse, for example, this might undermine their claim to political authoritativeness. To account for this, will-­based conceptions typically understand the citizens’ capacity to make valid political claims as limited to processes of will-­ formation that qualify as either rational or reasonable or both. A rational will is one that is suitably consistent (Gaus 2011a). A reasonable will is one that is not just consistent, but also suitably responsive to other persons as self-­ originating sources of valid claims (Rawls 1993). This said, neither type of restriction on the citizens’ equal political au­thori­ ta­tive­ness is to be understood in relation to a third-­personal standard for the validity of their claims. Rationality and reasonableness are understood as restrictions on the capacity to make valid claims that are internal to a person’s will-­formation.15 This is essential to ensure that citizens remain only bound by their own will.16 If political authoritativeness had third-­personal sources, this would potentially support unequal authority relations among the citizens, via a requirement for deference. In addition, adult citizens are generally assumed have the same capacity for rationality or reasonableness, bracketing intellectual disability issues or other factors potentially affecting rationality or  reasonableness. The defining commitment of will-­based conceptions, as I understand them, is thus that citizens who exercise their capacity for political judgment well are equally politically authoritative. Given the core claim of will-­based conceptions, that citizens are equally politically authoritative, the resulting problem of legitimacy is ensuring that political decision-­making is adequately responsive to the citizens’ will. In consent versions of will-­ based conceptions, found in the Hobbesian or Lockean traditions, equal political authoritativeness of the citizens is thought to imply that the citizens’ consent is needed for the legitimacy of political

15  Political voluntarism, in other words, may be a form of rational voluntarism. 16  Rousseau, as we saw above, has a clear articulation of the idea that citizens can only be bound by their own will. It is for this reason that I classified Rousseau’s conception of political legitimacy as a will-­based conception. But note that there is also a reading of Rousseau as defending a version of epistemic democracy, which would make his conception of political legitimacy belief-­based, not will-­ based—­see Grofman and Feld (1988). I discuss epistemic democracy in Chapter 4.

34  The Grounds of Political Legitimacy decisions (e.g. Simmons 2001; Greene 2016; Stilz 2019). The validity of a citizen’s political claim then depends on features such as the absence of fraud or force. Justificationist versions of will-­based conceptions, by contrast, highlighted most prominently in the Kantian tradition, take equal political au­thori­ta­tive­ ness to imply that the justification of political decisions should be in terms of the citizens’ own reasons (e.g. Rawls 1993; Darwall 2006; Gaus 2011a). The validity of a political claim, in that context, refers to the validity of each citizen’s reasons for or against political decisions, provided that these reasons meet standards of rationality or reasonableness.17

(b)  Political Equality Will-­based conceptions have different accounts of the normative significance of the citizens’ equal political authoritativeness for political legitimacy. The main accounts that have been proposed are egalitarian conceptions, freedom-­ centred conceptions, and relational conceptions. Let’s consider political egalitarianism, first. Egalitarian conceptions focus on equal respect that legitimate political decision-­making owes the citizens. All persons, understood as self-­originating sources of valid claims, are owed equal respect, and this imposes egalitarian constraints on legitimate political decision-­making. Charles Larmore has articulated this idea in the context of a public reason conception of political legitimacy. Larmore takes Rawls’ liberal principle of legitimacy as his starting-­ point, but argues that Rawls hasn’t fully answered the question as to why some form of agreement among the citizens is the ground of political legitimacy. Larmore’s own answer to this question involves a principle of equal respect for persons, understood as “beings capable of thinking and acting on the basis of reasons” (2008: 148). Political decisions that are imposed on citizens by force are wrong, he argues, because “we will be treating persons merely as means, as objects of coercion, and not also as ends, engaging directly their distinctive capacity as persons. . . . [T]o respect others as persons . . . is to require that political principles be as justifiable to them as they presumably are to us” (2008: 149).18 17  Later on in the book (see Chapter 6), I’ll commit to a justificationist view of political legitimacy. This will allow me to develop a more precise account of the validity of political claims. At the moment, I’m focusing on common elements of different conceptions of political legitimacy in an attempt to clear our sight of the grounds of political legitimacy. 18  For a further elaboration of this idea, see Larmore (2020).

The Political Will  35 Buchanan’s and Christiano’s arguments for a democratic conception of political legitimacy, similarly, build on equal respect. Buchanan (2002: 710) writes: “even in a democracy we can ask: is the wielding of political power compatible with a proper recognition of the fundamental equality of persons?” and he argues that treating the citizens as equals requires that they are involved in political decision-­making. Christiano (2008) argues that democratic decision-­making, and only democratic decision-­making, is legitimate because it publicly treats all citizens as equals.

(c)  Political Freedom According to freedom-­ based arguments, equal political authoritativeness implies legitimate political decision-­making responds to the equal freedom of the citizens. To respect their freedom is to refrain from imposing political decisions on them that wrongly interfere with their equal freedom to make their own choices, including in the political domain. To be legitimate, pol­it­ ical decisions must thus be the result of the free choices of the citizens. For Simmons (2001), this means that the citizens’ actual consent is required. For Greene (2016), to cite another consent view, a government is legitimate to the extent that its decisions are supported by what she calls “quality consent”—consent to the government’s ability to secure justice and welfare. To illustrate the importance of the citizens’ political freedom, Greene describes a “legitimacy utopia,” in which political decision-­making is not only fully just and welfare-­enhancing but also ideally legitimate because it is supported by the unanimous consent of all the citizens. The concern with the citizens’ voluntary support for a government, she argues, is thus an important normative concern in addition to a concern with equality, for example. Political freedom also plays a key role in Pettit’s republican conception of political legitimacy. Pettit (2012: 146) first endorses Simmons’ rejection of a justificationist view of political legitimacy. He then argues that political decisions should be made in a political process that gives citizens equal control. The citizens’ equal political authoritativeness is thus interpreted as equal standing in a process of self-­government. Some justificationist versions of will-­ based conceptions also prioritize political freedom. Gaus (2011a), like other public reasons conceptions of political legitimacy, links the citizens’ equal political authoritativeness to a requirement for the public justification of political decisions. But in some departure from other, more egalitarian, public reason conceptions, Gaus’

36  The Grounds of Political Legitimacy freedom-­centred interpretation holds that only decisions which each has their own reasons to support, after suitable individual deliberation, can be legitimate.

(d)  Mutual Accountability A third type of will-­based conception takes the main implication of equal political authoritativeness to be that the citizens stand in a relation of mutual accountability to each other. We already encountered this idea in Daniel Viehoff ’s participation conception of democratic legitimacy (Viehoff 2014). Viehoff, as we saw, argues that democratic decision-­making is legitimate in virtue of how it ensures that no citizen is subject to another, and that citizens are bound to obey democratic decisions because they give each citizen an equal say. He also argues that egalitarian conceptions of the legitimacy of democracy (e.g. Christiano 2008) fail to explain why citizens are bound by democratic decisions. I agree with Viehoff and others, who have argued along those lines (e.g. Anderson 1999; Kolodny 2014a, 2014b; Lafont 2020), that mutual ac­count­ abil­ity is the most promising strategy for explicating the way in which the equal political authoritativeness of the citizens might underpin a permission to make binding political decisions. And the reason is that mutual ac­count­ abil­ity focuses directly on the authority relation between the citizens, rather than on their social position (egalitarian accounts) or their individual control (freedom-­centred accounts). The fullest articulation of the mutual accountability argument for the pol­it­ ical will as a ground of political legitimacy comes from Darwall (2006, 2010), however. As the epistemic accountability conception of political legitimacy, which I defend later in this book, makes use of some of Darwall’s insights, it’s worth dwelling on his account a little longer. Darwall’s starting-­point is a question that is also central to this book: given that political legitimacy is a permission to make binding political decisions, how does a decision-­maker have the capacity to make binding decisions? Darwall answers this question with reference to the second-­ personal nature of authority relations. According to Darwall, to be in an authority relation presupposes that the addressees are accountable to the authority. Accountability, in general, is a state of being answerable—­to oneself or to others—­for one’s attitudes or actions. In the context of legitimate political authority, accountability is to the political decision-­maker and implies that

The Political Will  37 the citizens are under a normative expectation to act as directed. Without accountability, the relation is not an authority relation. It is, then, merely a power relation, in which one party attempts to get another party to act in some way, but without that party being under any normative expectation to act as directed. The next question is, what creates accountability and thus binds the citizens to act as directed? Darwall’s answer to this question involves three steps. In a first step, Darwall argues that we can only be accountable to others to act in some way if we can hold ourselves accountable to act in that way. What Darwall calls Pufendorf ’s point (Darwall 2006: 23) is that there is no ac­count­ abil­ity to others—­and hence no legitimate political authority—­without an ability to hold oneself accountable. In making this point, Darwall draws on Pufendorf ’s argument that God can only exercise authority over us if we can hold ourselves rationally accountable to follow God’s commands. It’s our capacity to hold ourselves rationally accountable for acting as directed that makes the commands binding for us. If we can’t hold ourselves accountable in this way, then fear of God, for example, may still lead us to comply with God’s commands. But acting from fear of sanction is not the same thing as acting in response to an authoritative command. We are not properly bound by God’s commands if we don’t hold ourselves accountable to follow God’s commands. Translated for the political context, this means that a legitimate political authority’s capacity to make binding political decisions presupposes that the citizens can hold themselves accountable to act as directed. In a next step, Darwall focuses on the kind of claims by an authority that we can hold ourselves accountable for. In the political context, the question is: given that the capacity to make binding decisions presupposes that the citizens can hold themselves accountable to act as directed, what sort of decisions can the citizens hold themselves accountable for? Darwall argues that the capacity to hold oneself accountable for one’s actions presupposes seeing oneself as a self-­originating source of valid claims about what should be done. The thought here is that we can only hold ourselves accountable for claims that we see ourselves as validly making and that presupposes our own authoritativeness. Finally, because the same argument holds for each citizen, the ac­count­abil­ ity in question is mutual accountability between the citizens. On what we might call Darwall’s accountability conception of political legitimacy, for there to be a permission to make binding political decisions, the citizens must be able to hold themselves mutually accountable to act as directed by those

38  The Grounds of Political Legitimacy political decisions and this presupposes that political decision-­ making responds adequately to the equal political authoritativeness of all citizens. It then follows that only political decisions for which the citizens can hold each other mutually accountable to act as directed are legitimate. As Darwall characterizes the accountability conception (2010: 277f.): the only justification [of authority] that can succeed is one that proceeds from within the second-­person standpoint, beginning with the assumption that we all share a common basic authority to make claims and demands of one another at all, and proceeding from there to consider what differential claims to authority anyone could sensibly accept or no one could reasonably reject on that basis.

As I’ve introduced it, the accountability conception might look like an unan­ im­ity conception of political legitimacy, because the ground is given by what citizens who are mutually accountable to each other can all agree on. But it is probably better understood as a variant of public reason conceptions, and certainly compatible with them. Public reason conceptions, as we saw, take the justification of political decisions to depend on the reasons that are shared, or that no reasonable person can reject. Because the accountability conception focuses on the moral normativity of practical authority relations, we might say that it offers a moral interpretation of the origin of those reasons (see Darwall 2006, 2010), in some contrast with Rawls’ (1993) political interpretation. In this section, I’ve reviewed egalitarian, freedom-­centred, and ac­count­ abil­ity arguments for the citizens’ equal political authoritativeness, which I take to be the core commitment of will-­based conceptions of political le­git­im­ acy. In light of these arguments, it is no surprise that will-­based conceptions dominate the literature in contemporary political philosophy. Their commitment to the equal political authoritativeness of citizens exercises a strong moral pull. And I quite agree that if citizens are equally politically authoritative, the citizens’ will, suitably understood, must be the ground of political legitimacy. This said, in the next section I raise an objection that affects all will-­based conceptions. The objection doesn’t deny that legitimate political decision-­ making must respond to valid political claims made by citizens, but it raises a question about what counts as a valid claim and casts doubt on the citizens’ equal political authoritativeness in all contexts. As we shall see, this arbitrariness objection, as I call it, rules out the political will as the sole ground of

The Political Will  39 political legitimacy, but it leaves open the possibility that the political will is part of an account of what makes political decisions legitimate.

2.3  The Arbitrariness Objection The arbitrariness objection against will-­based conceptions of political le­git­ im­acy holds that the political will is an inadequate ground for the permission to make binding political decisions, at least in some contexts, because of the potential arbitrariness of the political will. Will-­based conceptions of political legitimacy have an overly permissive account of what determines the validity of political claims.

(a)  The Validity of Political Claims To explain the arbitrariness objection against will-­based conceptions of pol­it­ ical legitimacy, it helps to draw an analogy between practical and theoretical normativity, first. Political claims are claims about what should be done. They are thus ultimately normative practical claims. In the theoretical case, normative claims are about what should be believed. When it comes to claims about what should be believed, many philosophers hold that the validity of those claims depends on third-­personal sources—­on the substantive truth of the claim, the evidence supporting it, the reliability of the belief-­formation process, or on similar considerations. The validity of certain types of subjective beliefs, such as the belief that you are in pain, may be an exception. But for most types of beliefs, and on most views of epistemic justification, persons are not self-­originating sources of valid theoretical claims. The premise that persons are self-­originating sources of valid claims is also mistaken in the practical domain, at least for a broad range of claims. No doubt, there are practical claims for which persons are self-­originating sources of validity. The claim “I don’t feel like eating an ice cream” is a good example. It’s plausible that there is no standard of validity beyond the preference they express. But many practical claims are not like this, not even in the political domain. In many political contexts, the validity of political claims depends on standards beyond one’s own will-­formation. There are, in those cases, correct and incorrect political claims. To illustrate, consider the political claim “vaccination should be a personal choice” in relation to a highly contagious and dangerous infectious disease

40  The Grounds of Political Legitimacy and a vaccine that meets demanding safety standards. Such a claim might lead citizens and political decision-­makers to oppose vaccination requirements or restrictions based on vaccination status. Suppose it’s possible to develop a good sense of the costs on others if vaccination were not required in any circumstances, and suppose they would be extremely significant, resulting in very large numbers of deaths and long-­term illness caused by the disease. A small gain in personal choice for a minority of vaccine-­sceptics might then be offset by large losses in personal liberty for much greater numbers.19 In those circumstances, it might be possible to establish, with sufficient robustness, that it’s not correct that vaccination should be a personal choice and that therefore there shouldn’t be a vaccine mandate in any context. Or consider the influential political claim made by the leave campaign in the run-­up to the Brexit referendum that “Brexit would increase the government’s ability to invest in the NHS.” That empirical claim was argued to be obviously and demonstrably false by the opposing campaign. The leave campaign, it appears, was aware of the falsehood of this claim and used it deliberately to influence the political will in support of Brexit. Their strategy worked in the sense that the claim appears to have greatly influenced leave voters. Finally, consider the decision of the Trump administration to enforce a US immigration policy that separates small children from their families. Is it permissible to separate small children from their families? Whatever else we should believe about immigration policies, I think it is sufficiently clear that small children need the protection of their families and should not be sep­ar­ ated from their families unless it’s for their own benefit. It thus appears that the political claim that it is permissible to separate small children from their families to achieve some other goal, not related to their own welfare, is unlikely to be correct. All three examples serve to illustrate that for some political claims, there are third-­personal standards of validity. Such standards might relate to the truth of a claim, the evidence in support of it, or the greater reliability of some processes of belief-­formation compared to others. Whatever the right standards are—­and I’ll say a lot more about this in later chapters—­the examples suggest that the validity of at least some political claims depends on what the non-­normative and the normative facts are that bear on what should be done and/or on what we should believe about them. And it appears that at least for 19  Oberman (2022) also argues that avoidable exposure to an infectious disease and preventable death from such a disease are forms of unfreedom.

The Political Will  41 some political claims, it might be possible to establish which claims are correct and which are incorrect.20

(b)  The Arbitrariness of the Political Will Whatever the criterion of validity is, I think we can all agree that disregarding valid political claims leads to arbitrary political decisions. And arbitrary political decisions lack legitimacy because, as per my definition above (Section 2.2), valid political claims have the normative force to make a difference to legitimate political decision-­making. Building on this general thought, the arbitrariness objection holds that will-­based conceptions of political legitimacy are not sufficiently responsive to sources of validity for political claims other than the equal political au­thori­ ta­tive­ness of the citizens and might thus support arbitrary political decisions. These conceptions, as we saw, are based on the practical ought as judged by the citizens, treating the citizens’ doxastic states as a given. If citizens aren’t necessarily self-­originating sources of valid political claims, however, we need a different approach to establishing the validity of political claims. Will-­based conceptions ignore how the validity of political claims might depend on what we should believe about relevant normative and non-­normative facts, for example. If some political claims are obviously incorrect, they should not sway legitimate political decision-­making. This may be particularly obvious if those claims are being made with an intent to deceive. But even if no malintent is present, if responding to the citizens’ will amounts to disregarding sufficiently robustly justified beliefs about what should be done in political decision-­making, this favours arbitrariness in political decision-­making. This arbitrariness objection against will-­based conceptions has far-­reaching implications for how we should think about political legitimacy. In Chapter 5, I argue that because of this potential arbitrariness problem, the political will can’t be the only ground of political legitimacy in circumstances where there are third-­personally valid political claims. Much of the rest of this book is concerned with defending the idea that the political will isn’t the only ground of political legitimacy and that there are epistemic constraints on the validity of political claims. The arbitrariness objection is only a first step in

20  It might be objected here that a reflective equilibrium approach can address epistemic concerns without presupposing a third-­personal standard of validity. I believe that this strategy fails for reasons similar to those articulated by Kelly and McGrath (2010).

42  The Grounds of Political Legitimacy this overall argument. But before we consider alternative grounds of political legitimacy, it will help to probe the arbitrariness objection a bit further.

(c)  Defending the Arbitrariness Objection A defender of a will-­based conception might reply to the arbitrariness objection by arguing that the problem with arbitrary political decisions can be addressed within a will-­based conception of legitimacy. They might argue that the problem with cases like the ones I’ve discussed isn’t that they arise as a result of failing to respond to alternative standards of validity. If there is a problem with the legitimacy of such decisions, it’s because they are an in­ad­ equate response to the political will, appropriately understood. They either fail to treat at least some people as self-­originating sources of valid claims, or they are not the kind of decisions that rational and/or reasonable persons would support. I’ll consider both versions of the reply, starting with the latter. The best version of the second reply is that reasonable citizens recognize that some political decisions, in their substance or how they are made, are incompatible with treating all persons as self-­originating sources of valid claims and not legitimate for that reason. Political decisions that encourage or tolerate slavery or genocide are prime examples (Rawls 1993). Citizens who are reasonable accept the constraints that the capacity of other persons to be self-­originating sources of valid claims imposes on their wills. There is no need to appeal to normative facts beyond what is willed by reasonable citizens to account for the illegitimacy of such political decisions. The problem with this sort of reply is that it seems to be the wrong sort of reply: it might be able to generate the right answer in at least some cases of arbitrary political decisions—­that such decisions are illegitimate—­but for the wrong reasons. What makes such decisions illegitimate is not they are incompatible with the will of reasonable citizens. It’s that those decisions fail to ­honour what should be believed about relevant empirical and normative facts. Or, to put the same point differently: in some instances, at least, a proper understanding of what is reasonable depends on what the correct political claims are in a given situation.21 The other version of the reply shows a partial recognition of this problem and argues that the equal political authoritativeness of the citizens is itself 21  I am drawing on the well-­known arbitrariness objection against constructivist theories of prac­ tical normativity here; see Shafer-­Landau (2003).

The Political Will  43 underpinned by normative facts. Charles Larmore’s egalitarian argument in support of a public reason conception is a good example for this sort of reply. Larmore (2008) maintains that there is a moral principle of equal respect that implies that only political decisions that are justified on the basis of reasons that the citizens can share are legitimate. The moral principle of equal respect that grounds this public reason conception of political legitimacy is not itself justified on the basis of some form of adjudication between wills, however.22 Its validity is derived from normative facts about personhood. My objection to this version of the reply is that if we allow that there is a moral principle of equal respect that applies in the political context, there is no reason to think that owing citizens equal respect is the only political claim that is valid in virtue of being supported by known normative facts. Instead, we should allow for the possibility that the validity of a whole range of pol­it­ ical claims depends on standards other than the equal political au­thori­ta­tive­ ness of the citizens. My general point, which I’ll develop in the rest of this book, is the following. Will-­based conceptions of political legitimacy wrongly ignore how the validity of some claims about what should be done, even in the political domain, depends on sources of validity other than the equal political au­thori­ ta­tive­ness of the citizens. Moreover, in those circumstances, the problem of political legitimacy is not appropriately described as a problem of how to decide given conflicting political judgments of the citizens and responding to the citizens’ wills is not the right type of solution to the problem of legitimacy. A different kind of reply to the arbitrariness objection is to point out that focusing on the sources of the validity of political claims eclipses the main reason why political philosophers have been concerned with political le­git­im­ acy and that is the coerciveness of political decisions and of the institutions in which political decision-­making is embedded. Because coercion is prima facie wrong, the line of argument goes, the permission to make binding political decisions depends on some form of consent or assent from the citizens, not on other standards of validity.23 While this reply has obvious merit, I argue in Chapters 4 and 5 that it is misleading. Accepting that political coercion is a moral wrong does not commit us to a will-­based conception of political le­git­ im­acy. But before I can develop this response, we need to consider alternative grounds of political legitimacy, first.

22  On the problem of self-­defeat that public reason conceptions of political legitimacy face, see Bajaj (2017). 23  Ripstein (2004) has a helpful discussion of the importance of coercion.

44  The Grounds of Political Legitimacy In this chapter I’ve argued that while the political will is an important ground of political legitimacy, as long as it is the case that citizens are equally politically authoritative, we should reject equal political authoritativeness in all contexts. Disregarding how the validity of political claims can depend on what should be believed about relevant empirical and normative facts would support undue arbitrariness in political decision-­making. If the validity of some political claims depends on relevant normative and empirical facts, then a plausible conception of political legitimacy must accommodate this. It must involve a fuller account of what makes political claims valid and, therefore, of what determines the permission to make binding political decisions. In Chapter 5, I develop and defend a hybrid conception of political legitimacy that accommodates elements of a will-­based conception together with other elements. Before we get to that, however, we need to consider alternative possible grounds of political legitimacy, and associated ideas about what determines the validity of political claims, which is what I’ll do in the next two chapters.

3 Political Factualism On the political factualist account of the ground of political legitimacy, whether there is a permission to make binding political decisions depends on the normative facts that obtain in a given situation. Political decisions are legitimate in virtue of being the right decisions, presupposing that there is a sense in which political decisions can be right or wrong independently of what the citizens believe or otherwise judge should be done. Right decisions are the decisions warranted by relevant normative facts in a given situation. Earlier, in Chapter 1, I illustrated the basic idea with a tax example. If the normative facts warrant a certain reform of the tax system, say because the current system is unjust, then, according to factualism, a decision to reform the tax system accordingly is legitimate in virtue of being warranted by the normative facts in these circumstances. Factualism about practical normativity is a popular view in meta-­ethics today. It analyses what we ought to do or what’s morally right on the basis of normative facts.1 In light of the current popularity of this view, it is perhaps surprising that not many contemporary political philosophers advocate some form of factualism about political legitimacy. The explanation of this puzzle that I offer in this chapter is that fact-­based conceptions of political legitimacy run into an accessibility objection. On a fact-­based conception, it is possible that a political decision is le­git­im­ ate without anyone being able to judge that the decision has this normative property. In general, on factualist views, what should be done may not be accessible to anybody given their beliefs, their evidence, or their preferences. In this chapter I argue that while factualism may be a viable prospect in some spheres of practical normativity—­ in relation to moral rightness, for example—­the potential accessibility problem that is inherent to factualism creates a serious difficulty for a conception of political legitimacy grounded on normative facts. Before we can properly consider the accessibility objection, we first need a better grasp of political factualism and its promise, however. 1  See Enoch (2011) and Parfit (2011), for example.

The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0003

46  The Grounds of Political Legitimacy

3.1  Fact-­Based Conceptions of Political Legitimacy Fact-­based conceptions of political legitimacy have been advocated far less often than will-­based conceptions of political legitimacy. As a result, there are fewer well-­developed examples to illustrate the basic idea. Still, there are some influential conceptions. In the longstanding debate on the principle of fair play (Hart 1955), for example, some political philosophers have defended the view that political obligations derive from benefits received from civic co­oper­ ation, independently of consent or other forms of acceptance. Such views are factualist if they hold that an obligation to obey political decisions that generate these cooperative benefits (social insurance, for example) stems from the fact that these decisions are beneficial. Political factualism also enjoys some intuitive appeal. Political activists, for example, might be drawn to the view that their role is to push for the right decisions to be made, and to enhance the legitimacy of political decision-­making in this way. More generally, the appeal of fact-­based conceptions comes from the thought that making the right decisions must carry legitimizing force. We might ask: if a political decision is the right one, doesn’t that bear on the permission to make it and on the bindingness of that decision? Political fact­ual­ism is thus potentially an important view that deserves attention, and it is less easy to dismiss than critics might think.

(a) Correctness Let me start with an overview of fact-­based conceptions of political le­git­im­ acy, to fix ideas. Consider, first, what David Estlund has influentially called a correctness theory of political legitimacy. As Estlund describes it, correctness theories hold that “political decisions are legitimate only if they are correct by appropriate procedure-­independent standards” (2008: 102). There are two ways in which we might interpret the relevant procedure-­independent standards. They might be interpreted epistemically, as standards of belief-­ formation—­individual or collective—­in relation to the question of what the right decision is. This is, I think, Estlund’s interpretation. If correctness is understood epistemically, then a correctness theory of political legitimacy is a version of a belief-­based conception of political legitimacy—­I’ll discuss those in the next chapter. If, by contrast, we interpret procedure-­independent standards meta­phys­ic­ al­ly, as normative facts that obtain independently of the citizens attitudes

Political Factualism  47 towards particular decisions and that determine what the right decision is, then correctness theories are fact-­based conceptions of political legitimacy. Correctness theories, thus understood, consider political decisions as le­git­im­ate in virtue of them being warranted by normative facts in given circumstances. The correct decision is the decision that is warranted by the normative facts in the circumstances—­it’s the right political decision in a given context. Relevant normative facts are independent of the citizens’ consent, their will more generally, or anyone’s beliefs about what the right decision is. The ­circumstances in which a political decision is made is a set of relevant em­pir­ic­al facts.

(b)  No Difference As I have defined them, fact-­based conceptions of political legitimacy take political decisions to be legitimate in virtue of being warranted by the normative facts in given circumstances. We can distinguish between two ways in which being warranted by the normative facts in given circumstances may be  understood. The first is to uphold what Joseph Raz has called the “no ­difference thesis” (1986: 30f.)—a thesis that he rejects. On those fact-­based conceptions, any permissions to make political decisions and obligations to obey them are determined fully by what we are permitted and obligated to do independently of any political decisions. To the extent that normative facts determine what we are permitted and obligated to do in given circumstances, the legitimacy of political decisions is nothing but an instantiation of those ­permissions and obligations. Political decisions do not make a normative difference. For example, suppose a particular political constituency is considering a new abortion law. As part of a fact-­based conception of political legitimacy, the no difference thesis holds that political decisions should accord with the normative reasons that apply in given circumstances. If the new law that is being considered accords with the moral permissions and obligations that there are in relation to abortion, then a decision to introduce that law would be legitimate. If it doesn’t, then the law would not be legitimate. The decisions of a legitimate political authority can’t create new permissions and obligations; they have to accord with the normative facts that apply anyway. An example of a fact-­based conception that satisfies the no difference thesis is a radical utilitarian conception of political legitimacy, according to which political decisions are legitimate just in case they maximize overall happiness.

48  The Grounds of Political Legitimacy On such a conception, the permission to make political decisions and any obligation to obey them originates in the decision’s contribution to overall welfare. More generally, strongly instrumentalist conceptions of political legitimacy, which base permissions to make political decisions or obligations to obey them strictly on the moral properties of those decisions, are best described as factualist. Richard Arneson (2003), for example, who defends a liberal egalitarian conception endorses the following instrumentalist prin­ ciple of legitimacy: “any individual has a moral right to exercise political power just to the extent that the granting of this right is productive of the best consequences overall” (2003: 40). The best consequences overall—­understood here as in relation to achieving a fully just egalitarian society—­are the relevant normative facts. Translated into the terminology of this book, the claim is that the permission to make political decisions depends on whether the institutional arrangement for making political decisions leads to decisions that are warranted by the normative facts. Some theories of political obligation, as already mentioned earlier, also appear to be factualist. Consider theories that understand political obligations as a type of morally basic associative obligation. Here’s how John Horton puts the idea, in the first edition of his Political Obligation (1992: 150–1): My claim is that a polity is, like the family, a relationship into which we are mostly born: and that the obligations which are constitutive of the relationship do not stand in need of moral justification in terms of a set of basic moral principles or some comprehensive moral theory.

In other words, associative obligations, such as the obligations we have to family members, but also the obligations we have to other citizens, are basic moral facts. Whether those facts obtain is independent of our attitudes, i.e. of our endorsement or our beliefs, as well as of further normative facts. To the extent that such associative obligations explain the bindingness of certain political decisions, they form part of a fact-­based conception of political legitimacy.

(c) Latency The second way in which factualist conceptions can be understood, in add­ ition to the no difference thesis, is in relation to what we might call a latency thesis. On this thesis, the permission to make political decisions and obligations to obey them are determined on the same normative ground as all

Political Factualism  49 permissions and obligations, but political decisions can still make a difference to what we are permitted or obligated to do. David Enoch (2014a) has offered the most developed fact-­based conception that I’m aware of that uses this second strategy. And while his account focuses on legitimate authority, in general, not on political legitimacy, spe­cif­ ic­al­ly, his proposal can be adapted to the political context. Enoch offers an analysis of legitimate authority that builds on factualism about practical normativity, in general. Specifically, he is committed to the view that normative facts, understood as attitude-­independent reasons-­facts, determine what we should do. Against the background of this commitment, the question he addresses is: how can a political decision—­an authority’s mere “say so”—ever give us a normative reason to act accordingly? Enoch’s answer is that political decisions can trigger a normative reason to act as directed. A reason is triggered if a change in the non-­normative circumstances makes it the case that a normative reason applies that didn’t previously apply. For example, if a political authority directs you to drive on the left, in an attempt to solve a traffic-­coordination problem, this can trigger a reason to drive on the left. Importantly, for an authority’s directive to be le­git­ im­ate, it is not necessary that the normative reason applied all along. You might not have a reason to drive on the left independently of that particular directive. But, the factualist argues, invoking the latency thesis, if we have an obligation to do so once a political decision in this matter has been made, that’s because the political decision has triggered a normative reason that explains this obligation. The permission to make this political decision, likewise, depends on the decision’s power to trigger a normative reason. Conversely, if an authority’s directive fails to trigger a normative reason for the addressees to act as directed, the directive is not legitimate. Normative facts constrain what an authority can legitimately demand from those ­subject to it. Translated into the language I’m using in this book, Enoch’s analysis ­supports the key factualist claim that political decisions are legitimate in virtue of being warranted by the normative facts that apply in given circumstances. It does so by accounting for the warrant via a triggering relationship: political decisions are legitimate in virtue of triggering normative reasons to act as directed for the citizens and those decisions have the property of legitimacy in virtue of the reasons-­facts that are being triggered by them.2 2  Someone might hold that Raz’ service conception of legitimate political authority is best interpreted as offering a factualist conception of political legitimacy. Raz (1986) explicitly rejects the no difference thesis, and that might suggest that his service conception envisages a triggering relation between legitimate decisions (directives), on the one hand, and dependent reasons, which justify

50  The Grounds of Political Legitimacy This brief overview serves to illustrate that there is a family of conceptions of political legitimacy that take political decisions to be legitimate in virtue of them being warranted by the normative facts that obtain in given circumstances. Fact-­based conceptions are less frequently advocated than will-­based conceptions, but there are important proposals that deserve serious consideration. Before I raise my objection against fact-­based conceptions of political legitimacy, it will be helpful to explore in more detail how political factualism might be defended.

3.2  Making the Right Decisions What can be said in defence of political factualism? While my aim in this chapter is ultimately to reject normative facts as a ground of political le­git­im­ acy, in this section I focus on factualism’s strength. Factualists are right to maintain, I argue, that aiming for the right decisions—­the decisions warranted by the normative facts in a given situation—­matters for political le­git­ im­acy. However, while I grant that point, I argue that it doesn’t imply that normative facts are a ground of political legitimacy—­contrary to the political factualist’s core claim. As we’ll see in the next chapter, cognitivism can also accommodate that point.

(a)  Taking Normative Facts Seriously Given that political legitimacy is a normative property, we must answer the question of how political decisions get to have this property. What grounds a permission to make binding political decisions? We already saw how a defender of will-­based conceptions answers this question. A political factualist claims (i) that the answer to this question must be continuous with the answer to the more general normative question of what we’re permitted and obligated—­or otherwise bound—­to do, and (ii) that the answer in both cases involves normative facts that either obtain independently of political decisions (no difference thesis) or exist independently of political decisions and are actualized through political decisions (latency thesis).

political decisions, on the other. That may indeed be one way to interpret Raz’ service conception, I agree. But I think a belief-­based conception is a better fit, and I explain this view in Chapter 4.

Political Factualism  51 We can distinguish between a meta-­normative and a normative argument that the factualist might offer in support of these claims. The meta-­normative argument is concerned with the kind of property that political legitimacy is. Assuming that there are normative facts that determine both permissions to act in certain ways and obligations, if there is a permission to make a particular political decision and if the decision is binding, the explanation of how it has that property can’t involve magic. Any explanation for a permission to make political decisions and for their bindingness must be based on ap­plic­ able normative facts. I’ll discuss this “no magic” argument in Section 3.3. Here I want to focus on the factualist’s normative argument. That argument aims to show that making the right decisions—­the decisions warranted by the normative facts—­matters for legitimate political decision-­making. If there are normative facts that have a bearing on how we should act, then a political decision that is warranted by those facts, either actually or latently, has a normative hold on citizens and decision-­makers in virtue of being warranted by those facts. Political decisions that are in tension with the decisions warranted by the normative facts, actually or latently, do not have the same normative hold. A plausible conception of political legitimacy should track this difference in normative status, the factualist argues. To illustrate, suppose a country considers issuing a meat-­eating ban on the basis that the practice of eating meat leads to a form of genocide. And suppose that this is in fact true: the practice is genocidal. Suppose also that there is widespread support for the decision among the citizens. The factualist would want to maintain that the reason the country should ban the practice is because it’s genocidal, not because there’s widespread support for it. It’s the content of the political judgment that the practice should be banned that is doing the relevant normative work here, not that many citizens concur with this judgment.3 What would make the ban legitimate is that it is the right decision in the circumstances. A political factualist need not hold that being warranted by the normative facts in a given situation is sufficient for a political decision to be legitimate. But, as I understand the account here, they will hold that being warranted by the normative facts in given circumstances is necessary for political le­git­im­ acy. Only the right decisions can be legitimate and decisions that are not warranted by the normative facts, no matter how much support they receive, are not legitimate.

3  See Enoch (2015) for a distinction along those lines.

52  The Grounds of Political Legitimacy Given what is at stake in many political decisions, and in light of what I said earlier in relation to the arbitrariness objection against will-­based conceptions of political legitimacy, I agree that the plausibility of a conception of political legitimacy depends on how well suited it is to recognize the right decisions—­the decisions that are warranted by relevant normative facts—­as legitimate. The genocide example illustrates the importance of this criterion. Political decisions that make significant inroads towards averting the climate crisis might further illustrate the point. If it is indeed the case that much of humanity is at great risk from climate change, then taking steps to avert the threat should be an aim of legitimate political decision-­ making. These ex­amples make it vivid that there is something to be said for a conception of political legitimacy that prioritizes making the right decisions.

(b)  The Limitations of the Political Will The important normative insight that we owe fact-­based conceptions of pol­it­ ical legitimacy can be further illustrated by contrasting them with will-­based conceptions of political legitimacy, which also serves to further develop the arbitrariness objection against will-­based conceptions that I introduced in the previous chapter. Consider consent views, first. A fact-­based conception of political legitimacy holds that legitimate political decision-­making does not require consent. What gives rise to a permission to make binding political decisions is not an act of will from the citizens, but the normative facts that obtain in given circumstances. Consent to a decision that is not warranted by the normative facts in the circumstances does not make that decision right. And lack of consent to a political decision that is warranted need not have normative force. This factualist objection has some force, I think, even though I’ll go on to reject a factualist conception of political legitimacy in the next section. The force of this factualist objection to a consent view of political legitimacy can be acknowledged without denying that consent can be a transformative normative act that gives rise to permissions and obligations in some ­situations. It can be granted that consent is significant in interpersonal relationships, for example. But factualists are right to point out that political decisions concern the lives of large numbers of people, and this reduces the normative weight of consent. An individual’s lack of consent to a decision warranted by the normative facts need not be a sufficiently weighty normative consideration to block a permission to make that decision or to undermine its

Political Factualism  53 bindingness. Consider the climate change example again. A failure to take the decisions warranted by the normative facts in current circumstances might lead to the unnecessary deaths of very large numbers of people and destroy the livelihoods of many more. In a situation like this, the factualist might hold, if a decision is warranted by the normative facts, citizens ought to consent and their failure to consent does not undermine the permission to make a binding political decision to mitigate climate change.4 Political factualism also has a point in relation to will-­based conceptions that are committed to a justificationist view of political legitimacy. As I briefly mentioned in Chapter 1, a justificationist view of political legitimacy holds that the permission to make binding political decisions depends on the ­reasons in support of them, not on consent. Factualist views are justificationist. But will-­based conceptions might also be justificationist. A public reason conception of political legitimacy, for example, is a will-­based conception that rest on a justificationist view. The contrast between a fact-­based conception and a public reason conception comes down to different accounts of how political decisions are justified or, more precisely, to different accounts of the relevant normative reasons. According to political factualism, as we saw, the justification of political decision is based on normative facts that obtain independently of the citizens’ attitudes or judgments. According to a public reason conception, by contrast, as discussed in Chapter 2, the relevant justification is in terms of reasons that the citizens can accept—­reasons that they can share or reasons that they accept individually but that converge on the same decision or decision-­ making procedure. Here’s how Rawls, one of the main advocates of a public reason conception of political legitimacy, describes the normative significance of agreement: Public justification is not . . . simply valid argument from given premises (though of course it is that). . . . [W]hen the premises and conclusions are not acceptable on due reflection to all parties in disagreement, valid argument falls short of public justification.  (2001: 27)

In other words, the reasons that can justify political decisions, according to a public reason conception, aren’t simply the normative reasons that apply in a

4  This echoes Estlund’s notion of normative consent (Estlund 2008). See also Raz (1995) for a discussion of the limitations of consent. I revisit this topic in Chapter 6, Section 6.1, when I argue against consent views of political legitimacy and in favour of a justificationist view.

54  The Grounds of Political Legitimacy given situation. And the justification of political decisions thus can’t be determined by what such reasons imply. Relevant reasons are those that citizens, at least after some deliberation, can recognize as applying. As part of a conception of political legitimacy, justification in terms of public reasons ensures that the citizens are only bound by their own will. The factualist, by contrast, holds that agreement doesn’t have normative force. If public reasons have any normative force, it’s because they are fact-­ given, not because there is some sort of acceptance or agreement. But if it’s the fact-­givenness of normative reasons on which political legitimacy depends, then the ground of political legitimacy is normative facts, not the pol­it­ ical will.5 This characterization of political factualism, and the contrast with will-­ based conceptions of political legitimacy, illustrates the helpfulness of taking a meta-­normative approach to the question of what makes political decisions legitimate, I think. It provides us an effective tool to cut to the chase in some important debates and identify with precision where the views come apart. Political factualism helps to highlight that there is normative force in making the right decisions that is missed by will-­based conceptions, whether they focus on the citizens’ consent or on the reasons they can accept. Another way of phrasing my arbitrariness objection against will-­based conceptions is thus to say that will-­based conceptions are not sufficiently well suited to grasp the bearing of making the right decisions for political legitimacy.

3.3  The Accessibility Objection As we saw, the strength of political factualism lies in how it recognizes the importance of aiming for the right decisions in legitimate political decision-­ making. Political decision-­making takes place in confusing circumstances and citizens’ attitudes and judgments often differ greatly. Political factualism aims to cut through this confusion by highlighting the normative priority of aiming for the right decisions—­ the decisions warranted by the normative facts. While this is political factualism’s strength, in this section I argue that fact­ ual­ism nevertheless fails to support a plausible conception of political le­git­ im­acy and should be rejected. My argument for this claim involves two steps. First, I argue that a plausible conception of political legitimacy must rest on 5  See Enoch (2015).

Political Factualism  55 grounds that are accessible in judgment. I then argue that because normative facts as a ground of political legitimacy may remain inaccessible in judgment, normative facts are the wrong ground of political legitimacy. I call this the accessibility objection against political factualism. As we shall see, defending the accessibility objection is less straightforward than it might seem at first.

(a)  The Problem of Accessibility To motivate the accessibility objection, compare the following two hypo­thet­ ic­al scenarios of the Brexit decision-­making progress that plagued the UK in 2019. Good case:  Suppose the UK parliament, haphazardly, ended up making a decision that revoked article 50 and committed the UK to staying in the EU. Suppose this was met with widespread protest from citizens who voted “leave” in 2016 and there is widespread uncertainty and confusion about the justification for this decision in the government, parliament, and among the citizens. Suppose also that this decision was actually warranted by the normative facts given the circumstances: the decision would have protected the citizens’ welfare, or avoided other problematic consequences of Brexit. Bad case:  Suppose the UK parliament, haphazardly, ended up making a decision that revoked article 50 and committed the UK to staying in the EU. Suppose this was met with widespread protest from citizens who voted “leave” in 2016 and there is widespread uncertainty and confusion about the justification for this decision in the government, parliament, and among the citizens. Suppose also that this decision was not warranted by the normative facts given the circumstances: Brexit would have been the right political decision. The two scenarios are identical at the level of what is accessible in judgment. They only differ with regard to the decision that the normative facts warrant in the circumstances. Factualism thus suggests that the decision has different normative properties in the two scenarios. In the good case scenario, where the decision accords with the normative facts, there is a justification to leave the EU, on a fact-­based conception. In the bad case scenario, the decision lacks this justification. The problem this example highlights is the following. If a factualist would want to say that being warranted by the normative facts is necessary for the legitimacy of a political decision, given that what is accessible about the

56  The Grounds of Political Legitimacy decision is the same in both scenarios, the factualist might have to allow different conclusions about the legitimacy of the decision to revoke article 50 in the two scenarios. Suppose we conclude in the first scenario that it’s legitimate to ignore the protests of the citizens and press on with reversing the Brexit decision. That’s justified in the good case. But in the bad case, that would mean supporting an illegitimate decision despite the protests. While factualism embraces this sort of inconsistency, shouldn’t a plausible conception of pol­it­ical legitimacy generate the same verdict in the two scenarios? The example serves to make vivid the main point of the accessibility objection. The point is that a conception of political legitimacy is in trouble if it yields different verdicts about the legitimacy of a political decision in scen­ arios that are indistinguishable at the level of what is accessible in judgment. Vice versa, the indistinguishability of two scenarios at the level of what is accessible in judgment should translate to equal verdicts about legitimacy.

(b)  Why Accessibility Matters We now need to consider why the ground of political legitimacy should be accessible in judgment. We have to be careful not to move too quickly here because inaccessibility is not necessarily a problem for all normative properties. There are well-­developed factualist views about a whole range of normative properties and important arguments for the rejection of the claim that inaccessibility is a problem. On a factualist view of moral rightness, for ex­ample, ignorance of relevant normative facts, even non-­culpable ignorance, does not change what we should do (e.g. Harman 2015; Weatherson 2019). To illustrate the idea, a factualist about moral rightness might hold that even if previous generations were ignorant of the wrongs of sexism and were unable to access relevant normative facts, engaging in sexist acts was still wrong. The question that thus needs answering is: why is the potential lack of access to normative facts a problem for a conception of political legitimacy, even if it might not be a problem in other normative contexts? What makes factualism about political legitimacy problematic, even if factualism about other normative properties or concepts is not problematic? My answer to this question has to do with the type of normative property that legitimacy is. Legitimacy is a normative property that primarily functions to settle our judgments—­specifically, about political decisions. Not all normative properties function in this way and lack of access may thus not be a problem for those properties. Moral rightness might be a good example for a normative

Political Factualism  57 property that plays a normative role beyond settling our judgments. We might not be able to judge correctly whether a particular action is morally right, but whether an action is morally right or not still does important normative work. Conceptions of political legitimacy that do not provide resources to settle political decision-­making, by contrast, are not plausible. To see this point, it helps to reflect on the different functions that normative properties might have. Some normative properties primarily function to orient our deliberation about what to believe and what to do. Consider truth, understood as a normative property of beliefs. When we say that truth is the aim of belief, we focus on the orientation that truth provides for our de­lib­er­ ation about what to believe. Orientation is also important in the practical context. Normative facts, as I’ve been referring to them, may orient our practical deliberation about what to do in the same way that truth might orient our deliberation about what to believe. The orientation function that some normative properties play in de­lib­er­ ation is important, but so is a second role. I call it the settling function. While the orientation function is world-­regarding, so to speak, the settling function is agent-­regarding. The settling function is geared towards establishing what we should believe and what we should do in given circumstances. Our deliberation tends to move back and forth between these two functions. When trying to answer the question of what we should believe, for example, we are likely to ask ourselves what truly is the case. Vice versa, when asking ourselves what the world is like, we are likely to check what we should believe about what the world is like. In the practical context, we are switching back and forth between considering the normative facts and trying to establish what we should do. The two functions are thus easily confused, but I am hoping that it is clear that they are distinct. Some normative properties are primarily orientational, but others are primarily there to settle our deliberation, and some play both roles. Truth, for example, is a normative property that is primarily orientational. On some views, the property of moral rightness is as well. On such an understanding of moral rightness, its main function is to mark what is morally the case, but not to help us decide how to act.6 Other normative properties are not primarily orientational—­they play a role in the settling function or mode. In the theoretical context, evidence is a property we primarily invoke when trying to settle our beliefs. In the practical context, the property of legality, similarly, helps us settle what to do. The 6  See e.g. Way and Whiting (2017) and Weatherson (2019).

58  The Grounds of Political Legitimacy property of political legitimacy is of this kind, too. If the potential legitimacy of political decisions would merely orient political decision-­making, something would be missing. The property of political legitimacy must be such that it can settle political decision-­making. Now, the orientation function of normative properties is not undermined by lack of access. It makes sense, for example, to say that truth is the aim of belief even if truth often remains inaccessible. Similarly, as just explained above, it can make sense to maintain that an action is morally wrong, even if the agent is not in a position to know that, or otherwise judge that this is so. We might also beneficially extend this sort of assessment to political decisions: some political decisions are morally right and others are morally wrong, quite independently of the attitudes and judgments of political decision-­ makers and ordinary citizens. Normative properties that remain inaccessible do, however, undermine the settling function. Only properties that we can access in judgment can settle our deliberation about what we should do or believe. With the distinction between orientational and settling properties in mind, we can now return to the accessibility objection. The core of the accessibility objection to political factualism is the claim that political legitimacy must settle political decision-­making. Combined with my first point, that accessibility matters for the settling function of deliberation, we then have an argument for why accessibility matters for a plausible conception of political legitimacy and for why normative facts are the wrong ground of political legitimacy.

(c)  Against Political Recklessness Why is settling so important, you might reasonably ask at this point. Isn’t it more important to get to the right political decisions? To answer this question, it helps to connect to my argument in the previous section. If you recall, I argued in defence of political factualism that making the right decisions matters for political legitimacy. But recognizing the normative significance of making the right decision isn’t the only criterion that a plausible conception of political legitimacy should satisfy. Paraphrasing William James who, in an epistemological context, distinguished between the goal of acquiring true beliefs and the goal of avoiding false beliefs, we can say that we shouldn’t just test conceptions of political legitimacy in relation to their capacity to identify the right decisions as legitimate. We also need to test them in relation to a criterion of avoiding making the wrong decisions. In political life, making the

Political Factualism  59 wrong decisions can be morally very costly, catastrophic even. Aiming for the right decisions should not make us blind to the possibility of ending up with terribly wrong political decisions. How do fact-­based conceptions of political legitimacy fare in relation to this second criterion? It might appear that they have no problem in relation to that criterion either. If a decision is not warranted by the normative facts, a fact-­based conception would not pick it out as legitimate. Seen in this light, it looks as if factualism fares well in relation to both criteria—­aiming for right decisions and avoiding wrong decisions. But that is not quite right, and the problem relates to the settling function of legitimacy. To see the problem, it will help to take a closer look at what happens in good case and bad case scenarios, like the ones I described in relation to the Brexit decision above. In the good case, a political decision is warranted by the normative facts; in the bad case, it isn’t. In good case scenarios, the factualist argument that normative facts are the ground of political legitimacy has more plausibility than in bad case scenarios. The reason is that there is no risk of going wrong in good case scenarios: whether decision-­makers are aware of it or not, the decision they’re about to make is the right one.7 The absence of such risk in the good case should not mislead us to think that being warranted by the normative facts trumps other normative concerns. If bad cases are possible, legitimate political decision-­ making can’t remain unconcerned about this prospect. If it can’t be ruled out that a political decision is the wrong one—­potentially with very grave consequences—­steps must be taken to prevent that from happening. A plausible conception of political legitimacy must thus offer an account of how to settle political decision-­ making in the face of a risk of making the wrong decisions. Factualism, however, is silent on what might be necessary to avoid making a wrong decision. The problem for factualism arises because the fortuitousness that is dis­ tinct­ive of the good case is absent in the bad case. While there is some plausibility to the claim that lack of access to the ground of legitimacy is not a problem in the good case, a parallel argument cannot be made in the bad case. In the bad case, such complacency is out of place. This shortcoming of political fact­ual­ism is further exacerbated by the prevalence of bad case scenarios. If history has taught us anything, it’s that good case scenarios in politics are the exception rather than the norm and that bad case scenarios must be taken seriously. Political decision-­making involves very difficult matters, making it likely that there is a gap between the political decisions 7  Weatherson (2019) argues along those lines for the moral context.

60  The Grounds of Political Legitimacy that are being considered and the decisions warranted by the normative facts in the circumstances. The possibility and prevalence of bad case scenarios imply that a plausible account of the grounds of political legitimacy can’t rest on the fortuitousness of good case scenarios. Furthermore, especially because it’s often very difficult to distinguish good cases from bad cases, a conception of political legitimacy that is based on grounds that may remain inaccessible in judgment will support undue pol­it­ ical recklessness. A political decision is reckless if it doesn’t appropriately respond to the risk of making a wrong political decision. While good case scenarios are immune from this problem of recklessness—­because the pol­it­ ical decision that is being considered is the right one—­political decision-­ making in bad case scenarios is not. The problem of political recklessness thus gives us a further reason why the concern with making the right political decisions can’t trump the concern with settling political decision-­making. My argument so far supports the following accessibility objection to fact-­ based conceptions of political legitimacy. The accessibility objection holds that normative facts are the wrong ground of political legitimacy because the grounds of political legitimacy must be accessible in judgment and normative facts might be inaccessible in judgment. The problem arises because the property of political legitimacy must be such that it can settle political decision-­ making (at least temporarily) and in order to fulfil the settling function, the property must be accessible in judgment. Political legitimacy doesn’t just set an aspirational standard for political decision-­making. Instead, political le­git­ im­acy sets a standard that can be used to settle whether decision-­makers have permission to make a binding political decision in a given context. To function in this way, the grounds of legitimacy must be accessible in judgment: we must be able to judge a decision as (potentially) legitimate and to distinguish it from (potentially) illegitimate decisions. Normative facts, which obtain independently of our judgments and might remain inaccessible in judgment, are the wrong basis for settling what we should do.

(d)  Is Magic Involved? My argument so far has focused on the factualist’s normative argument—­that normative facts must have a bearing on legitimate political decision-­making. I’ve accepted elements of the factualist’s normative argument—­specifically, that making the right decisions matters—­ but argued that the potential in­access­ibil­ity of normative facts in political judgment makes normative facts

Political Factualism  61 the wrong ground of political legitimacy. We now also need to consider the factualist’s meta-­normative argument—­what I labelled the “no magic” argument above, as this provides a potential reply to my accessibility objection. The meta-­normative argument aims to show that permissions to make binding political decisions can’t exist in a normative vacuum, so to speak, and explanations for why there is a permission to make binding political decisions must thus involve relevant normative facts. Another way of putting the “no magic” argument is that if there are normative facts that bear on political decision-­making, then it’s the fact-­relative ought that determines a permission to make binding political decisions.8 A conception of political legitimacy that tries to bracket normative facts brackets that which grounds a permission to make binding political decisions. It would then have to rely on normative magic to explain a permission to make binding political decisions. But magic need not be involved. The factualist’s meta-­normative argument doesn’t consider the possibility that normative facts might have a bearing on legitimate political decision-­making via the evidence-­relative ought. In light of the accessibility objection against political factualism, the evidence-­relative ought needs to be taken seriously, however. If normative facts, qua facts, can’t settle political decision-­making, ruling out any ground of political legitimacy other than the fact-­relative ought would leave the possibility of a permission to make binding decisions unaccounted for, and that can’t be right. It’s also not necessary to push the “no magic” argument to that point. The factualist’s concern with normative facts can be accommodated in a belief-­based conception of political legitimacy that explains a permission to make binding pol­it­ ical decisions building on the evidence-­relative ought and without running into the accessibility objection. In the next chapter, I’ll consider this possibility. Note also that restricting the grounding relationship to normative facts that are accessible, for example because they are known, does not save fact-­ based conceptions of political legitimacy as I have defined them. The reason is that if the normative work is done by knowledge, or some other form of access, then the ground of political legitimacy isn’t normative facts, as such, but epistemic advantage in relation to determining what the right decision is. Reliable judgments about what decisions accord with the normative facts in given situations may thus play a role in a belief-­based conception of political legitimacy. I will discuss this point more fully in the next chapter.

8  On the fact-­relative ought, see Section 1.3.

62  The Grounds of Political Legitimacy To recap, at the beginning of this chapter I characterized political factualists as holding (i) that the answer to the question of what makes political decisions legitimate must be continuous with the answer to the more general normative question of what we’re permitted or obligated to do and (ii) that the answer in  both cases is based on normative facts that either obtain independently of political decisions (no difference thesis) or exist latently independently of political decisions and are actualized through political decisions (latency ­thesis). In this section, I’ve argued against both claims, rejecting a normative and a meta-­normative argument in their support. I’ve shown that the question of what makes political decisions legitimate may not require the same answer as the question of what makes them morally right. And that’s because moral rightness is primarily an orientational property, whereas pol­it­ical legitimacy cannot be primarily orientational. Legitimacy functions to settle political decision-­making and because we may not have access to relevant normative facts, they fail to appropriately guide political decision-­making, especially in the face of bad case scenarios. Normative facts are the wrong account of the ground of political legitimacy for that reason and the permission to make binding political decisions can’t rest on the fact-­relative ought.

4 Political Cognitivism In the previous chapter, I argued that fact-­based conceptions of political legitimacy run into an accessibility problem. But what if it’s possible to establish, with sufficient robustness, what the right political decision is in a given situation? Is such epistemic access significant for political legitimacy? Belief-­ based conceptions answer yes. Belief-­based conceptions of political le­git­im­ acy take political decisions to be legitimate in virtue of according with cognitive political authority. And cognitive political authority is the permission to make binding political decisions that arises from a superior grasp of what the right political decision is in a given situation. Cognitive political authority is thus a third main ground of political legitimacy, in addition to the political will and normative facts. This chapter has the same structure as the previous two chapters. I start with an overview of different belief-­based conceptions, to underline the importance of this way of thinking about political legitimacy. I then discuss the core meta-­ normative commitment of belief-­ based conceptions and explain how epistemic advantage can function as a ground of political le­git­ im­acy. In the final section, I introduce what I take to be the main objection against belief-­based conceptions.

4.1  Belief-­Based Conceptions of Political Legitimacy At the beginning of the Covid-­19 pandemic, early in 2020, a situation arose that is not often seen in politics. A robust scientific consensus formed on how the outbreak of this new, highly infectious, and often lethal disease should be contained, based on years of experience with similar pandemic outbreaks in the past. The recommendations involved highly coercive measures such as travel bans, school closures, etc. Most governments moved quickly to implement those measures and those governments that were slow to respond, such as the UK, came under international pressure from other governments and from experts at the World Health Organization. At least at the beginning, many people deferred. As the pandemic wore on, the picture became much The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0004

64  The Grounds of Political Legitimacy more complicated, with governments having to make difficult decisions concerning how to manage public health goals while also delivering on other commitments, including education, income security for households, and business survival. Even so, the call to follow the science remained re­mark­ ably strong. The call to base political decision-­making on expert advice is a good illustration of how epistemic advantage can be a ground of political le­git­ im­acy. As the Covid-­19 example illustrates, even in democratic societies, belief-­based channels to political legitimacy continue to have a hold on political decision-­making. The key to the legitimacy of the first lockdown decisions isn’t that they were made in a democratic process. Instead, it’s that lockdown appeared to be the right response to this new disease. Part of my aim in the next chapter is to offer an account of how the intertwining of will-­based and belief-­based grounds of political legitimacy might be best understood. In this chapter, however, my aim is to characterize belief-­based conceptions of political le­git­im­acy and explain both their strength and their limitations. In this section, I give an overview of belief-­based conceptions.

(a)  Epistemic Advantage Belief-­based conceptions of political legitimacy offer an alternative to both will-­based and fact-­based conceptions. In contrast to will-­based conceptions, belief-­based conceptions of political legitimacy deny that persons are self-­ originating sources of valid political claims. They also deny that a conception of political legitimacy should, in the first instance, offer a solution to the problem of how to adjudicate between the potentially conflicting political judgments of the citizens.1 Instead, they take valid political claims to depend on sufficiently justified or correct political beliefs—­beliefs about what decisions should be made in given circumstances. Borrowing terminology from Hélène Landemore (2013: 208), we can also characterize belief-­based conceptions as committed to political cognitivism. Political cognitivism holds that there are correct answers to the question of what the right decision is in given circumstances, and that correctness sets a 1  I say in the first instance because belief-­based conceptions can recognize that the legitimacy of some political decisions will depend on them adequately respecting a person’s will. Raz’ argument for the protection of autonomy is a good example (cf. Raz 1986, 2006). But what makes the decision le­git­ im­ate, on Raz’ view, is not that it adjudicates between wills in the right way as such, but that the normative facts favour respect of individual autonomy in given circumstances.

Political Cognitivism  65 standard for legitimate political decision-­making. As we saw in the previous chapter (Section  3.1), there are two ways in which we might interpret a correctness standard. Whereas fact-­based conceptions take the ground of pol­it­ical legitimacy to be given by right decisions, as such, belief-­based conceptions interpret this standard epistemically. According to belief-­based conceptions, political decisions are legitimate in virtue of being based on sufficiently justified beliefs about what the right decision is. The more closely the standard of correctness for political beliefs is tied to truth about what decision the normative facts warrant in a given situation, the stronger the overlap between belief-­based and fact-­based conceptions. The overlap need not be very significant on deflationary interpretations of political cognitivism. If political cognitivism is understood broadly, as the view that political claims are truth apt, it can accommodate quite weak interpretations of political truth.2 A deflationary interpretation of political truth might be that right decisions are those that rational or reasonable citizens accept, but that view would be indistinguishable from political ­voluntarism. In order not to blur the boundary between political cognitivism and political voluntarism, I’ll assume a narrower understanding of political cognitivism in this book. Belief-­based conceptions of political legitimacy, as I  understand them here, hold that true political claims track the decisions favoured by attitude-­independent normative facts in given circumstances. If the truth of political claims is taken to depend on normative political facts, as I do, belief-­based conceptions of political legitimacy share this normative starting-­point with fact-­based conceptions of political legitimacy. Both belief-­based and fact-­based conceptions then presume that, in many political circumstances, at least, there are right decisions—­decisions that are warranted by the normative facts in those circumstances—­and that such facts play a role in determining the legitimacy of political decisions. While normative facts thus play a role in both belief-­based and fact-­based conceptions of political legitimacy, they do not play the same role. Belief-­ based conceptions take the ground of political legitimacy to be constituted by sufficiently justified beliefs about what the right decision is, not by the normative facts as such. The beliefs in question may be true beliefs, in which case a belief-­based conception of political legitimacy would yield the same recommendation about legitimate political decisions as a fact-­based conception, but the grounds would still differ. On a fact-­based conception, it’s accordance with the normative facts as such in given circumstances that makes a political 2  See Estlund (2008) and Landemore (2013: 208f.) for discussions of this issue.

66  The Grounds of Political Legitimacy decision legitimate, whereas on a belief-­based conception, it’s that the decision has been made based on true political beliefs. We can shed further light on the way in which fact-­based and belief-­based conceptions might or might not converge if we recall the distinction between a fact-­relative ought and an evidence-­relative ought that I introduced in Section 1.3 and briefly discussed at the end of the previous section. If the evidence is such that it points to the political decision that is favoured by the normative facts in given circumstances, there is no gap between the fact-­ relative and the evidence-­relative ought: fact-­based and belief-­based conceptions of political legitimacy will identify the same political decision as legitimate in this case, albeit on different grounds. But if the evidence is such that it points to a different decision, a gap opens between fact-­based and belief-­based conceptions. A belief-­based conception identifies as legitimate the decision that the evidence points to, even if that decision is not, in fact, the right decision. The gap further opens if belief-­based conceptions do not require that political decisions perfectly track the evidence about what should be done, but allow that political decisions might be legitimate even if the decision-­making body occasionally makes a mistake. As we might also put it, on belief-­based conceptions, legitimate political decision-­making reflects the beliefs of those who have responded well to the evidence about what the right decision is in a given situation—­beliefs that are sufficiently justified. There are more inclusive—­ democratic—­ and more exclusive—­often elitist—­belief-­based conceptions of political legitimacy, and I’ll get to this distinction in a moment. I’ll also have a lot more to say later on what sufficiently justified beliefs might be. But the important point to note here is that the claim that defines belief-­based conceptions is that there is a kind of epistemic advantage that gives rise to a permission to make binding political decisions. Call this kind of epistemic advantage cognitive political authority. Cognitive political authority is thus the permission to make binding political decisions that is grounded in sufficiently justified beliefs about what the right political decision is in a given situation. Because they take the ground of political legitimacy to be embedded in beliefs, belief-­based conceptions avoid the accessibility objection that I’ve raised against political factualism in the previous chapter. The accessibility objection, if you recall, says that we might not be able to determine what decision the normative facts warrant in a given situation, and that fact-­based conceptions of political legitimacy might thus not be able to settle political decision-­making. Belief-­based conceptions specify that legitimate political decision-­making should be settled on the basis of our best beliefs about what

Political Cognitivism  67 the right political decision is in given circumstances. Note that, because they are grounded in epistemic advantage, not in the evidence as such, belief-­based conceptions also do not fall victim to a modified version of the accessibility objection, which would hold that potential decision-­makers might not be able to determine what the evidence implies should be done.

(b)  Inclusive Belief-­Based Conceptions There are more exclusive and more inclusive versions of belief-­based conceptions. More exclusive versions build on the ability of a group of decision-­ makers to form sufficiently justified beliefs about what should be done and thus to acquire cognitive political authority in this way. Epistocratic conceptions of political legitimacy are a good example (e.g. Brennan 2016). More inclusive versions build on the power of a collective decision-­making process— ­a democratic process, for example—­to yield political decisions that reliably track the correct political judgment. In inclusive versions, cognitive political authority is held by the citizenry as a whole, or at least a representative ­subgroup, as long as its decision-­making process succeeds in identifying the right decision with sufficient accuracy.3 The best-­known examples of inclusive versions of belief-­based conceptions are theories of epistemic democracy that build on the Condorcet jury the­ orem (e.g. Goodin and Spiekermann 2019). The CJT says, roughly, that if there are two alternatives—­where one is the right decision and the other is not—­and if every member of a democratic collective is more likely to vote for the right decision and they vote independently of each other, then the majority is also more likely to vote for the right decision and the probability that it makes the right decision increases rapidly with the size of the collective. If the relevant conditions are met, the CJT says that larger groups are more likely to identify the right decision than smaller groups or individuals; a democratic collective, for example, may reliably outperform a group of experts. The CJT can thus be used to defend the legitimacy of democratic decision-­making on the ground that the democratic decision-­making process holds an epistemic advantage over other forms of political decision-­making. An important alternative to a CJT-­based argument for the legitimacy of democracy is Landemore’s more deliberative version of epistemic democracy 3 Lafont (2020: ch. 3) draws a parallel distinction between elite epistocracy and democratic epistocracy.

68  The Grounds of Political Legitimacy (Landemore 2013). It builds on the problem-­solving capacity of diverse groups, inspired by research by Lu Hong and Scott Page’s diversity-­trumps-­ability theorem (DTA).4 Landemore argues that democracy outperforms epistocracy. Democracy can draw on the cognitive diversity of citizens whereas groups of  experts tend to be more homogeneous and think alike. Her key claim is ­captured in what she calls the numbers-­trump-­ability theorem (NTA): I . . . propose to generalise the Diversity Trumps Ability Theorem into a Numbers Trump Ability Theorem, according to which, under the right conditions and all things being equal otherwise, what matters most to the collective intelligence of a problem-­solving group is not so much individual ability as the number of people in the group . . . . To the extent that cognitive diversity is a key ingredient of collective intelligence, and specifically one that matters more than average individual ability, the more inclusive the deliberative process, the smarter the solutions resulting from it should be.  (Landemore 2013: 104)

Landemore remains non-­committal on whether the NTA is sufficient to account for the legitimacy of democracy. But the NTA can be used, like the CJT, to underpin a democratic conception of political legitimacy that is belief-­ based, rather than will-­based.

(c)  Exclusive Belief-­Based Conceptions Epistocratic conceptions of political legitimacy are a prime example of exclusive belief-­based conceptions. In an epistocracy, the permission to make binding political decisions is granted to those individuals who are in an epi­ stem­ic­al­ly advantageous position with regard to the question of what the right decision is. David Estlund (2008: 30) captures this idea by characterizing epistocracy via a commitment to the following authority tenet: “When some citizens have greater knowledge or reliability, this justifies granting them political authority over those with lesser knowledge.” In a clear departure from the equal political authoritativeness commitment that I’ve identified in will-­based conceptions of political legitimacy, the authority tenet holds that some

4  See Hong and Page (2004). Weymark (2015) argues that the DTA doesn’t hold for binary political decisions.

Political Cognitivism  69 citizens—­those with the right level of expertise—­should be more politically authoritative than others. How elitist is epistocracy? Jason Brennan argues that it need not be understood as maximally elitist. In his view, epistocrats only need to be committed to the following antiauthority tenet (Brennan 2016: 17): “When some citizens are morally unreasonable, ignorant, or incompetent about politics, this justifies not permitting them to exercise political authority over others.” Given that both the authority tenet and the antiauthority tenet relate the permission to make binding political decisions to some epistemic conditions, they both capture the core commitment of belief-­based conceptions. The difference between them is that the authority tenet focuses on who should be politically authoritative, whereas the antiauthority tenet focuses on who should not be politically authoritative. The higher the bar is set here for the withdrawal of a permission to be involved in political decision-­making, or the lower it is set for granting citizens a permission to be involved in political decision-­making, the narrower the gap between these two ways of characterizing epistocracy. And if the bar for political authoritativeness is set very low, the gap between an exclusive belief-­based conception and an inclusive conception narrows or disappears altogether.5 Some type of authority tenet also plays a role in Joseph Raz’ service conception of legitimate political authority (Raz 1986, 2006), I think. The corner stone of this conception is the so-­called normal justification thesis. The normal justification thesis focuses on what distinguishes merely de facto political authority and legitimate political authority. And Raz’ answer is that if political authority is legitimate, it can be shown that the directives it issues allow those subject to the authority to better comply with reasons that apply to them ­anyway, independently of the directives, than if they relied on their own ­judgment (see Raz 1986: 53). Legitimate political authority has the capacity to issue pre-­emptive reasons for action—­reasons that require the citizens to bracket their own deliberation—­and it has this capacity because its decisions allow citizens to better comply with what they have reason to do than if they relied on their own judgments. Epistemic advantage plays a key role in the normal justification thesis because being in a position of epistemic advantage—­or being prepared to defer to those who are—­is what enables the political decision-­making body to make decisions that allow people to better comply with reasons that apply to 5  The competence condition in the CJT only requires that citizens perform slightly better than random, for example.

70  The Grounds of Political Legitimacy them anyway, independently of those decisions. So the key commitment of the service conception, I take it, is that political decisions are legitimate only if they are made by a political decision-­making body that is sufficiently re­li­ able in identifying the right political decisions in given circumstances. It might be objected here, however, that this interpretation of Raz’ service conception as a belief-­based conception is misleading, and that the service conception would be more adequately interpreted as a fact-­based conception of political legitimacy.6 In reply, let me note, first, that I can’t comment here on which version Raz would have wanted to endorse. What makes the Razian conception a belief-­based conception, in my view, is that the normal justification thesis says that a legitimate political authority can be relied upon to identify the right political decisions. So it doesn’t merely purport to issue directives that constitute pre-­emptive reasons for action for the citizens. A legitimate political authority must know what it’s doing and reliably succeed, better than the citizens themselves, in identifying the right decisions. Even a fraudulent political decision-­making body, which claims to be tracking what the citizens have reason to do even though it is not, may occasionally make a decision that happens to accord with what should be done. But this sort of moral luck would not make the decision legitimate. The decision-­making body—­the political authority, in Razian language—­ will only generate pre-­ emptive ­reasons for action for those subject to the decision if it makes its decisions in a way that tracks the evidence-­relative ought sufficiently well.7 We might be tempted to think that exclusive belief-­based conceptions are necessarily socially elitist. To be sure, elitism is a feature of some epistocratic conceptions of political legitimacy, namely those that attribute epistemic advantage to established experts such as social and natural scientists. But exclusive versions of belief-­based conceptions are not necessarily socially elitist. Standpoint epistemology, put in a political context, may support a non-­ elitist, exclusive belief-­based conception (e.g. Collins 1989). According to standpoint epistemology, marginalized social groups have superior epistemic access to at least some social problems and, on that basis, to the question of how society should be reformed to address these problems. A non-­elitist belief-­based conception might hold that legitimate political decision-­making in the context of those social problems should prioritize the perspective of members of marginalized groups, not (just) established experts.

6  See footnote 2 in Section 3.1.

7  There is also some textual evidence; see Raz (2006: 1026).

Political Cognitivism  71 In this section, I have shown that there are influential conceptions of pol­it­ ical legitimacy that are belief-­based. In the next section, I consider an objection to belief-­ based conceptions that is frequently raised, namely that epistemic advantage can’t ground legitimate political authority. I argue that this objection can be refuted, and addressing it gives me an opportunity to further clarify and defend the core commitment of belief-­based conceptions of political legitimacy.

4.2  Cognitive Political Authority Can epistemic advantage be a ground of political legitimacy? A common objection against belief-­based conceptions—­I call it the standing objection— ­is that to take epistemic advantage as a ground of political legitimacy is to conflate epistemic authority and political authority. Estlund (2008: 3), for example, warns us of the following “expert-­boss fallacy”: “[political] authority does not simply follow from expertise. . . . You may be correct, but what makes you boss?” The objection turns on the claim that epistemic authority can only generate advice, it doesn’t generate a permission to make binding decisions on behalf of others. The objection doesn’t just target epistocratic belief-­based conceptions of political legitimacy. Cristina Lafont (2020), for example, argues that epistemic arguments for democracy, at best, only show that some collective processes are well suited to answer a question about what we should believe. Unlike will-­based conceptions of democratic legitimacy, belief-­based conceptions thus can’t explain the legitimizing force of democracy. If the standing objection holds, it follows that epistemic advantage is the wrong ground for a permission to make binding political decisions, and there is no such thing as what I’ve called cognitive political authority. But does it hold? Do belief-­based conceptions irretrievably fall victim to some version of the expert-­boss fallacy? As the objection turns on the distinction between epistemic authority and practical authority, it’s worth saying a bit more about these two concepts, first, before considering the objection itself.

(a)  Epistemic and Practical Authority Political authority is a species of practical authority. As a species of practical authority, it’s concerned with what we should do. If practical authority is legitimate, there is a permission to issue binding directives. If practical

72  The Grounds of Political Legitimacy authority is merely de facto, but not legitimate, there is no permission to tell others what to do. The legitimate authority of your boss does not normally extend to telling you what you eat for lunch, for example. Similarly, if political authority is merely de facto, the decision-­maker is not permitted to make the political decision and the decision is not binding. Epistemic authority is distinct from practical authority. In the first instance, it relates to claims about what we should believe, not to claims about what we should do. An expert might have epistemic authority. They might tell you what the prospects of rain are for your hiking trip the next day. Like practical authority, epistemic authority might be merely de facto, in which case you merely take what they claim to give you a reason for belief. If epistemic authority is genuine (the analogue to legitimate practical authority), then it has the normative power to make claims about what you should believe.8 To illustrate the distinction, consider a celebrated scientist who might enjoy de facto epistemic authority on the relationship between science and philosophy as a result of their genuine epistemic authority in their scientific field, but lack the normative power to make claims about what should be believed in this matter because they lack a good grasp of philosophy.9 Similarly, a government advisory body that offers advice that oversteps the limits of available scientific knowledge in a particular domain has de facto epistemic authority, but lacks genuine epistemic authority in this matter. Experts, understood as a social group, need not have epistemic authority on the topic on which they make pronouncements, and this distinction is obviously very important in the political context. A fuller discussion of the potential import of epistemic authority for legitimate political decision-­making will thus have to reflect on the distinction between genuine epistemic authority, and merely de facto authority. I’ll return to this issue later in the book. In this section, however, I focus on genuine epistemic authority.

(b)  The Standing Objection The standing objection to belief-­based conceptions of political legitimacy concerns the link between genuine epistemic authority and legitimate 8  Different conceptions of epistemic authority give different accounts of this normative power. I bracket this issue for the time being, and return to it in Chapter 8. 9  The example illustrates an instance of “epistemic trespassing” (Ballantyne 2019: 195ff.), in which someone with genuine epistemic authority in a certain field makes pronouncements on issues about which they lack genuine epistemic authority. I discuss epistemic trespassing in more detail in Chapter 8.

Political Cognitivism  73 pol­it­ical authority. Are critics of belief-­based conceptions right to argue that epi­stem­ic advantage is the wrong ground for political legitimacy because it involves a conflation of epistemic authority and political authority? What’s the argument against epistemic advantage as a ground of political legitimacy? To my mind, the most fully developed argument has been offered by Stephen Darwall, as part of his rejection of Raz’ service conception of le­git­im­ acy (Darwall 2006, 2010). The objection builds on Darwall’s argument for mutual accountability as the ground of political legitimacy that I presented in Chapter 2. Adapted to the political context, Darwall’s objection aims to show that an epistemic authority does not have standing to make legitimate pol­it­ ical decisions.10 In what follows, I first present the standing objection, following the debate between Darwall and Raz quite closely. I then show how the standing objection can be refuted and I draw some general conclusions in support of cognitive political authority as a ground of political legitimacy. As we saw earlier, Darwall’s own argument for a will-­based conception of political legitimacy and, more specifically, for the significance of mutual accountability among the citizens starts with the question: what must be presupposed for someone to have the capacity to issue binding directives for ­others? Darwall’s answer is that there must be standing to hold accountable (Darwall 2010: 261). I called this the argument from accountability. I already presented the argument from accountability in Chapter 2. So here I just summarize its four main steps for convenience, focusing on the political context: 1. Legitimate political authority entails accountability: Political decisions are only binding if the citizens are accountable to the political decision-­maker. 2. Holding oneself accountable: For the citizens to be accountable to the political decision-­maker, they must each be able to hold themselves accountable to act as directed. 3. Self-­originating sources of valid claims: Citizens can only hold themselves accountable for claims that they see themselves as validly making and that presupposes their authoritativeness. 4. Mutual accountability: Political decisions are only binding if the citizens can hold each other mutually accountable for the decisions made.

10  Lafont (2020) has raised similar objections.

74  The Grounds of Political Legitimacy Against the background of the argument from accountability, we can now consider Darwall’s standing objection against Raz’ service conception of legitimate practical authority. Darwall objects that epistemic advantage in relation to what the right decision is in a particular situation may be the basis for giving advice, but it does not generate legitimate political authority. The problem with Raz’ service conception, according to Darwall, is that the normal justification thesis might be satisfied by epistemic authority, but because the citizens are not accountable to epistemic authority, the service conception rests on the wrong ground of political legitimacy. Darwall gives the following example to illustrate where Raz’ service conception goes wrong. Suppose you have prudential reasons to provide for your retirement and a financial expert tells you how best to do so. Darwall argues that it does not follow from the fact that you would best comply with those reasons if you were to follow her directives that she holds legitimate practical authority over you. Moreover, the expert does not have legitimate practical authority even if you would best comply with those reasons if you treated her as somebody with practical authority over you, not just as somebody who is in a position to give advice. Darwall uses this example to show that Raz’ normal justification thesis fails to track the important difference between epistemic authority and practical authority. Epistemic authority does not give rise to legitimate practical authority, in general, or legitimate political authority, more specifically, because there is no accountability to epistemic authority in the way in which there is for legitimate practical authority. That’s the core of the standing objection. In a political context, the objection holds that epistemic authority might be the basis for giving advice on what the right political decisions are in given circumstances, but it doesn’t generate what I’ve called cognitive political authority. While Darwall focuses his objection on Raz’ service conception, it has broader reach. His argument, generalized to apply to all belief-­based conceptions of political legitimacy, aims to show that there is no such thing as what I’m calling cognitive political authority. The standing objection thus functions as a rejection of belief-­based conceptions of political legitimacy, in general. It holds that the permission to make binding political decisions is necessarily grounded in something other than epistemic advantage. In his reply to Darwall, Raz agrees that the financial advisor in Darwall’s example has no legitimate practical authority, even though they hold epi­ stem­ic authority. Raz uses a different example to make a parallel point (Raz 1986: 64): an expert on Chinese cooking may be able to give you advice on

Political Cognitivism  75 how to prepare an authentic Chinese dish, but their expertise doesn’t amount to legitimate practical authority. Raz rejects the idea, however, that such cases point to a problem with the service conception of legitimate political authority. So what explains that the financial advisor and the Chinese chef do not have legitimate practical authority? As we saw, according to Darwall, it’s accountability that makes the difference. Raz, by contrast, rejects this ex­plan­ ation. Referring to Darwall’s financial advisor case and asking whether she has legitimate practical authority, Raz writes: For Darwall the answer is: no, because he is not answerable to [the financial advisor]. For me it is, if anything, the other way around. I am not answerable to her because she has no authority.  (Raz 2010: 301)

Raz’ own explanation is that not all cases of epistemic authority yield le­git­im­ ate practical authority. If epistemic authority isn’t in the right domain, it can’t be a ground of legitimate practical authority and, as a result, there can’t be accountability. Raz argues that legitimate practical authority can only obtain for categorical reasons—­reasons that apply to the citizens independently of their particular goals (see Monti 2018). In both Darwall’s financial advisor case and in the Chinese chef case, this condition is violated, however, as the advice you receive is relative to your values. Because their epistemic authority doesn’t extend to what you have categorical reasons to do, it can’t issue binding directives. If there is epistemic authority in the right domain, by contrast, then accountability follows epistemic authority. Translated to the political context and using my own terminology, the claim is that cognitive political authority only obtains if there is epistemic authority on the question of what the right political decision is in given circumstances. There might be plenty of experts with expertise on issues that bear on political decision-­making. But if their epistemic authority doesn’t extend to the question of what the right decision is in a particular context, it can’t be a ground of political legitimacy. What generates a permission to make binding political decision is epistemic advantage in relation to the question of what political decision is warranted by the normative facts in a given situation.11 In response to Raz, Darwall (2010) argues that this strategy won’t work, as even epistemic authority in relation to categorical reasons won’t be sufficient 11  I’ll return to this point in Chapter 8.

76  The Grounds of Political Legitimacy to generate standing to hold accountable. On this view, there can be no obligations to obey, no binding political decisions, unless they are compatible with the equal political authoritativeness of the citizens.

(c)  Epistemic Accountability How should we respond to this standing objection? I think we can accept Darwall’s claim that accountability is part of a full analysis of what it means to be bound by the claims of someone else and that the scope of legitimate pol­it­ ical decision-­making is defined by standing to hold accountable. We should also accept that accountability to the claims of others presupposes that we can hold ourselves accountable for the sort of claim that they’re making on us. In other words, I accept the first two steps of the argument from accountability. I reject the third step, however: it’s not the case that we can only hold ourselves accountable for claims that we see ourselves as validly making. There is a type of accountability for action that follows epistemic authority. I call it epistemic accountability for action. Epistemic accountability for action relates to what we should believe we should do, and it extends to cases in which what we should believe we should do is determined by testimony.12 The standing objection against belief-­based conceptions of political legitimacy fails, I argue in the rest of this section, because it overlooks our epistemic accountability for action. If we reformulate the third step of the argument from ac­count­abil­ ity, we’ll see that the argument from accountability doesn’t undermine the possibility of cognitive political authority. To see how the standing objection fails, we first need to explain how it is possible that the citizens might be accountable to a political authority that holds or defers to epistemic authority over what the right political decision is in a particular situation. That is to say, we need to take a closer look at accountability. In the context of practical authority, in general, and political authority, more specifically, we’re obviously concerned with accountability for action. What gets the standing objection off the ground is an overly sharp division between the practical domain and the theoretical domain, which denies that epistemic considerations play a role in accountability for action. Once we reject this overly sharp division, we can see that there can be an epistemic ground for our accountability for action.

12  Railton (2003) speaks of accountability to truth.

Political Cognitivism  77 On Darwall’s view, it is our capacity to hold ourselves accountable for our actions, and only this capacity, that is the basis for our accountability to practical authority. Darwall (2006: 249) writes, in a restatement of Pufendorf ’s point, that to be subject to an obligation . . . the obligated agent must be able to see the addresser’s claim or demand not just as externally imposed even as imposed justifiably from the addresser’s perspective, but as something he, the addressee, justifiably demands of himself from a standpoint he and the addresser can share. He must be able to think not just that someone else might have reason to reproach him were he not to comply but also that he would be to blame, that there would be warrant for him to blame himself.

Holding ourselves accountable for our actions means that we can distinguish between actions we should do and actions that we should not do, and that we are able to see ourselves as an appropriate target of blame, including self-­ blame, if we do something we should not do. Darwall connects our ac­count­ abil­ity for our actions to us being self-­originating sources of valid claims about how to act and this ultimately leads him to endorse mutual ac­count­ abil­ity as the ground of political legitimacy. As you might recall, in Chapter 2 I argued, against will-­based conceptions of political legitimacy, that there are limits to the idea that we are self-­originating sources of valid claims, even in the practical domain. My defence of cognitive authority as a ground of pol­it­ ical legitimacy builds on this idea. To see how epistemic considerations might impact on what we should do, consider this non-­political example first. Suppose I see my friend’s ­agitated state and—­correctly—­form the belief that the situation demands some delicacy on my part. But I’m also irritated by all the agitation and blurt out a very offensive comment. In this situation, I’m an appropriate target for blame, not just because I did what I did, but also because I acted contrary to what I knew I had reason to do. “You should have known ­better” is what I might say to myself, or what someone else might say to me. Let’s say that in cases where there is an epistemic ground for holding people accountable for their actions, including themselves, there is epistemic accountability for action. In the political case, similarly, what we should believe about political decisions will have a bearing on which political claims we should recognize as valid, and therefore, on our accountability. That no evidence could be produced for the claim that the 2020 US election was “rigged,” as Trump claimed,

78  The Grounds of Political Legitimacy for example, is significant for the validity of that claim, and this impacts on our assessment of Trump’s actions and his supporters. In addition, epistemic accountability for action need not be limited to autonomously formed beliefs. Epistemic accountability for action might also depend on testimony we receive from others, including testimony from an epistemic authority. To see this, consider the following prudential case, first. Suppose you’re trying to buy a house. You see a great listing that’s within your budget and are keen to go ahead. Unfortunately, a qualified and highly rep­ut­ able surveyor whom you trust tells you that the property is threatened by Japanese knotweed—­a very invasive species that can destabilize buildings. Instead of listening to the surveyor, however, you go and inspect the situation yourself and decide that, given that it’s your dream house and because the infestation is only at the end of the garden, you’ll still go ahead with the purchase. A couple of years later, the house is at risk of falling down. Even though you didn’t have knowledge of the threat directly, in hindsight you realize that you should have taken on board the surveyor’s testimony and you fully, and appropriately, blame yourself for your foolish purchase. Again, we can say that you should have known better—­your accountability for your action here derives from your accountability for your beliefs. But this time, it’s because an epistemic authority told you so. Your epistemic ac­count­ abil­ity for action might thus depend on what an epistemic authority has told you.

(d)  Refuting the Standing Objection So far, we’ve established that there might be an epistemic ground for ac­count­ abil­ity for action and that epistemic accountability for action might extend to deferring to the testimony of others about what the right thing to do is. But we still need to explain how epistemic authority relates to legitimate practical authority, including political authority. In the surveyor case, just like in Darwall’s financial advisor case, there is no legitimate practical authority. But the explanation is not, pace Darwall, that epistemic authority is the wrong ground for legitimate practical authority. Instead, and I’m following Raz here, part of the problem is that epistemic authority isn’t over the right domain in those cases. If epistemic authority is over the right domain, by contrast, then epistemic accountability explains why epistemic authority can give rise to legitimate practical authority. To explain why the standing objection fails, we thus first need to identify

Political Cognitivism  79 epi­stem­ic authority of the right kind. In a second step, we can then focus on the role that epistemic accountability plays in accounting for the bindingness of decisions backed up by epistemic authority of the right kind. This will show how epistemic authority, if it’s in the right domain, can give rise to cognitive political authority. In the financial advisor case, we might say the financial advisor only has a limited grip on how I should be leading my life overall. We might also say that we don’t have reason to outsource our responsibility for our life in a piecemeal fashion. More generally, the issue is that the sort of prudential reasons that I have to follow the advice of the financial advisor, or the property surveyor, do not generate practical authority: the domain of epistemic authority in these cases is too narrow to support an overall evidence-­relative ought on what we should do. That epistemic authority doesn’t necessarily generate legitimate practical authority doesn’t imply that epistemic authority can’t generate legitimate practical authority, however, including legitimate political authority. To help us make progress in this matter, consider the following moral case. Suppose you’re at a large gathering and you have just accidentally discovered that a fire has started behind a heavy curtain. Having previously been involved in health and safety, you have considerable knowledge about fires, in general, and quickly realize that this fire will, if unattended, spread very quickly and engulf everything. Nobody else appears to be aware, but they do know about your background. Because of your superior epistemic position, and given the threat, you should now act quickly and do everything you can to help evacuate people to safety. It gives you permission to ask attending staff to help you evacuate. It also gives you permission to ask some guests to leave the premises and to insist that they do so quickly, even if they don’t fully grasp what’s going on, and to ask other guests to hold back, to avoid bottlenecks. And because they are aware of your qualification, everyone should do as they’ve been told. If they ignore your directives and people get injured or die as a result, they will be accountable for this, and it would be appropriate for them to blame themselves for their failure to act as instructed by you. The key difference between the fire case and the surveyor case is that while there is no answerability to others in the surveyor case, there is in the fire case. And what explains this difference is the domain over which there is epi­ stem­ic authority. Recall that accountability is a state of being an­swer­able—­to oneself or to others—­for one’s attitudes or actions. In the surveyor case, the surveyor’s testimony makes you epistemically accountable for your action, but only in the sense of being answerable to yourself for your bad decision. In

80  The Grounds of Political Legitimacy the fire case, epistemic accountability also covers answerability to others. If anyone in this situation ignored the directives of the health and safety person and acted on their own accord, thus putting others in danger, they would be accountable to others for this decision. The case that I’ve described can be adapted to the political context to show that epistemic authority as a ground of political legitimacy functions in an analogous way. Some political cases will be like the fire case, except with more people, bigger stakes, and far more complicated cause-­and-­effect chains and responsibilities.13 Consider the following stylized political case for illustration (borrowed from Peter 2016). Suppose a town needs to replace a main bridge, which spans over a major river. And suppose that all other aspects of the decision have been dealt with, such that the only remaining issue is: is the planned bridge stable? And suppose there is a town engineer with a faultless track-­ record on decisions of this kind. Their verdict is that the planned bridge suffers from stability issues and should thus not be built. In a scenario like this, the verdict of the town engineer appears to be sufficient to render a decision to go ahead with the planned bridge illegitimate—­because it’s known that this would avoidably put people’s lives at risk. Neither the town executive nor a democratic town hall meeting could have permission to decide to go ahead.14 In both the fire case and the bridge case, we’re looking at a high-­stakes scen­ario, where many people’s lives are at risk. There is epistemic authority on what the right decision (or set of decisions) is in response, and it’s possible to identify that epistemic authority. Call this kind of epistemic authority decisive epistemic authority. The two cases illustrate that if decisive epistemic authority can be harnessed by a decision-­maker—­whether directly, as in the fire case, or indirectly, as in the bridge case—­this not only changes what we should believe we should do, it is also significant for how we should act. In other words, what the epistemic authority says in those cases doesn’t just change our evidential situation. It also changes our practical situation by making you answerable for your action, not just to yourself, but to others, too. My explanation for the practical normative significance of decisive epi­ stem­ic authority is twofold. The first part of this explanation is that the dir­ect­ ives of decisive epistemic authority, by definition, track the evidence-­relative ought, and the evidence-­relative ought trumps the practical ought if the stakes are sufficiently high. If the stakes are not very high, then we might still want 13  The situation at the beginning of the Covid-­19 outbreak that I described at the start of this chapter was perhaps a case in point—­I’ll return to this example in Chapter 5. 14  I’ll have a lot more to say later on the conditions for epistemic authority of the right kind—­see the next section as well as Part II, especially in Chapter 8.

Political Cognitivism  81 to leave room for individual judgment, for anti-­paternalist reasons or similar reasons to do with the protection of individual autonomy.15 But if the stakes are very high, as they are in both the fire case and the bridge case, then the evidence-­relative ought, if it can be established, trumps the practical ought. But this part of the explanation isn’t quite sufficient. We might accept that, in a case like the fire case, you ought to act as directed, in some moral sense.16 But do the directives you receive have binding force, in the way in which the directives of legitimate practical authority do? My answer to this question is yes, and that’s because of our epistemic accountability. Epistemic ac­count­abil­ ity thus provides the second, equally important part of the explanation for the practical normative significance of decisive epistemic authority. We are accountable to act as directed in circumstances where there is decisive epi­ stem­ic authority, and we can hold ourselves accountable to do so, because of the testimony we’ve received. There is no need to appeal to our own assessment of what the right decision is to explain the binding force of decisions that accord with the recommendations of decisive epistemic authority in high-­stakes scenarios. Decisive epistemic authority, in the political case, gives rise to cognitive political authority. Cognitive political authority, if you recall, is a permission to make binding political decisions that arises from epistemic advantage. Decisive epistemic authority is the sort of epistemic advantage that can support a permission to make binding political decisions. My full explanation for why the standing objection against the possibility of cognitive political authority fails is thus that there are circumstances in which the explanation for the bindingness of a certain political decision lies in our epistemic accountability, given that there is epistemic authority of the right kind. It is thus not the case that political legitimacy necessarily rests on mutual ac­count­ abil­ity, presupposing the citizens’ equal political authoritativeness.17 The argument I’ve offered has implications for the plausibility of belief-­ based conceptions of political legitimacy, in general. It doesn’t just hold for the service conception, or for belief-­based conceptions of political legitimacy that involve exclusive cognitive political authority. It also holds for those that involve inclusive cognitive political authority, such as conceptions of political legitimacy that build on the CJT or the DTA/NTA theorems. 15  I discuss such a case in Chapter 5. 16  I thank an anonymous reviewer for pressing me on this point. 17  Because political decisions can be binding even without presupposing the citizens’ equal pol­it­ ical authoritativeness, this shows that coercion need not be the fundamental concern for political legitimacy. I’ll return to this point in the next chapter (Section 5.2).

82  The Grounds of Political Legitimacy Recall that on those epistemic democracy conceptions, cognitive political authority is held by a body of citizens. They achieve cognitive political authority through some kind of wisdom-­of-­the-­crowd process, in which each citizen contributes by expressing their beliefs about what the right political decision is in a given context. They might do this through voting or through their contributions to political deliberation. They may disagree about what the right decision is, but they all contribute to the process of identifying the right political decision. And as part of a belief-­based conception of political le­ git­ im­ acy, the epistemic argument for democracy then explains why ­democratic decisions are legitimized by cognitive political authority. On such an inclusive belief-­ based conception of political legitimacy, the ­epistemic superiority of the collective decision-­making process explains why the citizens should defer to the collective on the question of what the right decision is, and the citizens’ epistemic accountability explains why they can hold themselves accountable to act as directed by that collective political decision. In sum, in this section I defended belief-­based conceptions of political legitimacy against the objection that they conflate epistemic authority and political authority, by arguing that our epistemic accountability implies that cognitive political authority can be a ground of political legitimacy, if  there is epistemic authority of the right kind. Having defended belief-­ based conceptions, I now want to argue that while cognitive political authority can be a ground of legitimacy, it is only a ground in a limited range of cases.

4.3  The Epistemic Underdetermination Objection The epistemic underdetermination objection against belief-­based conceptions holds that in the typical epistemic circumstances of politics, there tends to be no decisive epistemic authority—­established genuine epistemic authority on what the right political decision is in a given situation. My aim in the rest of this chapter is to argue that in circumstances where there is no epi­stem­ic authority on what the right decision is, or if it can’t be established with ­sufficient robustness that there is such epistemic authority, cognitive political authority can’t be the ground of political legitimacy. This poses a serious problem for belief-­based conceptions of political legitimacy if the epistemic circumstances of politics are typically not favourable.

Political Cognitivism  83

(a)  The Epistemic Circumstances of Politics Both inclusive and exclusive belief-­based conceptions of political legitimacy require favourable epistemic circumstances. If the conditions for the CJT or for the NTA are not met in the actual circumstances of politics, this kind of argument for the cognitive political authority of democratic collectives falls through. And the main problem with the attempt to ground political le­git­im­ acy in expertise is that expertise on what the right decision is in a given situ­ ation tends to run out rather quickly in many political contexts. The problem arises because political decisions typically touch on complex and wide-­ ranging issues that are hard to grasp fully. Whether decision-­making concerns economic regulation, international cooperation, climate change management and mitigation, the remedy of discriminatory practices, the provision of social services such as health care, or the appointment of im­port­ ant political office holders, it will inevitably involve hard-­to-­track empirical facts and difficult-­to-­weigh normative considerations. So the epistemic circumstances are often not favourable for cognitive political authority. For there to be cognitive political authority, a range of conditions must be met. First, there must be a robust and unified, or unifiable, body of evidence on what the right decision is. Call this the body of evidence condition. Second, epistemic authority must extend to the political question of what the right decision is. Call this the competence condition. And, third, it must be possible to establish that there is such relevant epistemic authority. Call this the identification condition. I will now explain each of these conditions in turn. As we’ll see, the three conditions are difficult to meet in the normal epistemic circumstances of pol­ it­ics, on any belief-­based conception. In the normal epistemic circumstances of politics, we tend to find fragmented bodies of evidence and insufficient political competence, and there are problems with identifying the expert point of view even if it exists. These epistemic circumstances explain why cognitive political authority is not normally available.

(b) Evidence First, let’s consider the condition that cognitive political authority only obtains if there is a robust and unified, or unifiable, body of evidence. If the body of evidence is very thin, with not much data available and not many

84  The Grounds of Political Legitimacy precedents, any evidence-­relative ought it might support will be swamped by uncertainty, which leaves too much room for speculation about how add­ ition­al evidence might affect the validity of political claims.18 Consider the situation many governments were facing early in 2021. Over the course of a year, the Covid-­19 pandemic had been claiming many lives, pushed health services to their limits, and disrupted education, work, and social life. New mutations of the virus threatened the efficacy of vaccines. In light of this, governments had to make difficult decisions about trade-­offs between health goals and other goals, often on the basis of extremely limited evidence and great uncertainty about outcomes. “Unprecedented” was a trending word in much of 2020 and early 2021, and the thinness of the available evidence left governments on the defensive. If the body of evidence is rich, by contrast, it might be difficult to unify. A unified body of evidence is the body of evidence that is available once all rele­ vant evidence is fully shared. Evidence in the typical instances of political life is highly dispersed, however, and may be difficult to share. In considering a minimum wage increase, for example, relevant evidence includes scientific studies from a range of different fields, including economics, sociology, pol­it­ ical science and public policy, medicine and public health, and other related fields. It also includes the experiences of workers, business owners, and their friends and families, and considerations about the relative importance of employment, mutual respect, general welfare, etc. For all these reasons, a unified body of evidence bearing on a decision to increase the minimum wage is thus often difficult to assemble. This claim can be further substantiated on the basis of standpoint epis­tem­ ol­ogy. Standpoint epistemology focuses on the significance of our social situatedness for our epistemic resources and capacities (Harding 1991). Standpoint epistemologists make a range of claims, but the important one in the context under consideration here is what we might call the denial of aperspectivalism in relation to evidence (Toole 2022). Aperspectivalism holds that evidence, qua evidence, is at least in principle accessible to different epistemic agents.19 Standpoint epistemologists deny this and argue, instead, that there are im­port­ ant types of evidence, relating, for example, to what it’s like to inhabit

18  See Dorst (forthcoming) on ambiguous evidence. 19  As Toole (2022: 49) characterizes it, aperspectivalism is “the view that an epistemic agent’s justification for some proposition must be accessible to other epistemic agents who are exposed to the same epistemic features of a situation.”

Political Cognitivism  85 particular social standpoints, that are not easily shared. If evidence for politically relevant claims is perspectival, there is no unified body of evidence.20 Not all belief-­based conceptions are equally well placed to meet the body of evidence condition. Inclusive belief-­based conceptions of political legitimacy that draw on the DTA theorem (Landemore 2013) look most promising in this regard. As we saw earlier, the thesis holds that bringing together people with different perspectives has epistemic benefits and this theorem might support a democratic conception of political legitimacy on this ground. Perspectives can differ for many reasons. But we should expect that one driver of diversity of perspectives is that citizens have access to different bodies of evidence, in addition to having different skills and methods, etc. Interpreted in this way, the DTA holds that, everything else equal, there are epistemic benefits if a collective body is able to draw on diverse bodies of evidence. If there is a process that harnesses these benefits in political decision-­ making, such as a deliberative democratic process, this can help ensure that the right decision is made. A conception of democratic legitimacy that builds on the DTA then does not require that there exists a unified body of evidence. Instead, the democratic decision-­process itself becomes a mechanism to unify diverse bodies of evidence.21 The body of evidence condition poses more of a challenge for conceptions of political legitimacy that draw on the CJT. Recall that the theorem only establishes cognitive political authority if certain conditions are satisfied. Citizens must be minimally competent and they must cast their votes in­de­ pend­ent­ly from each other. But how is competence, in particular, to be understood? There are two main options here. The first understanding relates competence directly to tracking the right decisions, i.e. the decisions that the normative facts imply is the right one in given circumstances. The beliefs of a competent voter, on this understanding, track the right decisions sufficiently well. The second understanding of the competence condition relates it to evidence. The beliefs of a competent voter are a sufficiently good response to the available evidence.22

20  Many have argued that the rise of social media and the creation of a new, largely digital public sphere have exacerbated the fragmentation of the public sphere, for example through the formation of echo chambers (e.g. Nguyen 2020). If that’s right, the epistemic circumstances of the new public sphere make it even more difficult to satisfy the body of evidence condition. This said, as, for example, the BLM movement illustrated, the digital public sphere also offers resources that facilitate the sharing of information and, therefore, of politically relevant evidence. 21  See Daniel Singer (2019) for a defence of the importance of diversity, as opposed to mere randomness; see also Benson (2021) on diversity and the epistemic value of political deliberation. 22  See Goodin and Spiekermann (2019: ch. 5) for this distinction.

86  The Grounds of Political Legitimacy If we define competence in relation to tracking the right decisions, then a unified body of evidence is not necessary—­the CJT competence condition can then be satisfied even if the evidence is highly dispersed. But this is not a plausible interpretation of this condition. We form our beliefs on the basis of the evidence that we have, not directly on the basis of how the world is. And being competent is different from merely being lucky, even from having a long streak of luck. The CJT competence condition is thus more plausibly interpreted in relation to how citizens respond to the best available evidence. On this interpretation, however, the CJT only holds if there is a unified body of evidence. If evidence is dispersed rather than shared, and different bodies of evidence have different implications about what the right decision is, the error-­cancelling mechanics of the theorem doesn’t work. For the positive result of the CJT to obtain, and for a collective decision-­making process to generate cognitive authority, it is then necessary that there is a unified body of evidence. A unified body of evidence is also a necessary condition for cognitive pol­it­ ical authority as construed by exclusive conceptions based on expert beliefs, for example in the context of an epistocratic conception of political legitimacy (e.g. Brennan 2016). The political authority of a small group of experts can only be legitimate if their political decisions are justified on the basis of a unique evidence-­relative ought. If there isn’t a unified body of evidence, and if there are different groups of experts that draw on different bodies of evidence, then the available evidence can support conflicting conclusions about what the right political decision is in the circumstances. Without a unified body of evidence, there is no unique evidence-­relative ought that could ground the cognitive political authority of a group of experts. Discrimination is a good example to illustrate the problem. Consider a political decision that potentially involves discrimination against some marginalized social group. Such decisions might be made in the context of employment laws, family laws, personal identity, decency, education, taxes, to name just a few. In addition to all the research that might bear on the issue to be decided, whether directly via policy-­oriented research or more indirectly via more general research, there will be the under-­researched, but nevertheless real, experiences of discrimination among members of marginalized groups. The body of evidence that these experiences of discrimination generate may be distinct from the body of evidence examined in established forums of research, but nevertheless relevant for how to decide on the issue in question. In addition, what researchers in different fields consider as evidence might also vary, for example across quantitative and qualitative research. As a result, there can be a range of conflicting but valid claims on this matter.

Political Cognitivism  87 The body of evidence condition presents a major obstacle for belief-­based conceptions of political legitimacy. It particularly affects belief-­based conceptions that draw on the CJT as well as exclusive belief-­based conceptions. Belief-­based conceptions that draw on the DTA are less affected. But the other two conditions affect the DTA as well.

(c) Competence A second condition, the competence condition, is that relevant expertise must relate to the political question of what the right decision is in given circumstances. We can distinguish between two requirements that are entailed by this condition. First, it requires competence on a certain political issue. Being a recognised expert in a domain is not enough, as this might be compatible with limited competence and a partisan point of view. Expertise that would merely serve the interests of some social groups and not of others can’t ground legitimate political decision-­making. A political decision that is made with reference to partisan expertise would not be justified. For there to be cognitive political authority, relevant expertise must track the political decision that is warranted by the normative facts in a given situation. Second, expertise of the right kind must relate to what the right decision is in a given context. The competence condition is only met if there is a body which can competently judge what should be done in a given context. The competence condition is not met if there is lots of politically relevant ex­pert­ise, but that expertise doesn’t enable a body to competently judge what the right decision is. Even if the epistemic circumstances are favourable, such that there is a unified body of relevant evidence and it is robust, it could be that there is no epistemic authority on the key question that needs answering: what is the right decision in this situation? The problem arises for exclusive belief-­based conceptions, in particular, because scientific expertise typically relates to quite narrow questions, and doesn’t extend to the question of what the right political decision is in a given context.23 In the Covid-­19 case, for example, the question governments faced in early 2021 was: do we need to impose another lockdown? Answering that question well required expertise across a broad range of areas, including epidemiology and public health, economics and public finance, psychology and psychiatry, education, sociology and social work, etc., as well as an ability 23  Reiss (2019) draws a similar distinction.

88  The Grounds of Political Legitimacy to recognize and weigh relevant ethical considerations. If expertise is limited to specific topics that bear on the political decision, there won’t be decisive epi­stem­ic authority on what the right decision is in the circumstances, even if there is lots of politically relevant expertise. Inclusive belief-­based conceptions might fare better with regard to the competence condition, for two reasons. First, because they embed cognitive political authority in democratic decision-­making procedures, a focus on the main political question—­what should be done—­is built in. Second, because they rely on wisdom-­of-­the-­crowd mechanisms, they don’t need high competency in individuals in order to secure decisive epistemic authority at the collective level. But they are not entirely immune either, for several reasons. In the context of the CJT or related results, there is a question of whether average citizens are sufficiently competent and how to determine whether they are (see Goodin and Spiekermann 2019). If it’s not clear whether the members of a decision-­making body are sufficiently competent, it can’t be established whether its decisions hold cognitive political authority. The DTA thesis also appears to hold only in some epistemic environments, but not in others. According to Patrick Grim et al. (2019), the thesis holds in environments that are characterized by high levels of randomness. In epi­ stem­ic circumstances where the probability of some individuals being able to identify the right decision is less random, by contrast, a large and diverse group may well underperform. As they put the point, in epistemic environments in which “successful individuals are more plausibly viewed as experts, it is the groups of high-­performing individuals that do better. Given the other assumptions in play, it is ability that trumps diversity when that ability is portable.” In those environments, a large and diverse group will fail the competence condition and democratic procedures can’t be relied on to generate cognitive political authority.

(d) Identification Finally, a third difficulty that the epistemic circumstances of politics create for cognitive political authority is the problem of establishing who has sufficient epistemic authority to be granted political authoritativeness. I called this the identification condition.24 The more inclusive a belief-­based conception is, the less of a challenge arises from this third condition—­if everyone is 24  Estlund (2008: 36) calls the underlying problem the problem of “invidious comparisons.”

Political Cognitivism  89 included, the challenge of how to identify those with sufficient expertise is bypassed. This third condition thus primarily affects exclusive belief-­based conceptions.25 But inclusive conceptions are also affected if they are not fully inclusive, but require a selection based on diversity or competence. Even if the evidence is unified and robust, and even if there is expertise on the question of what the right political decision is, identifying who has sufficient epistemic authority can be challenging.26 Different groups of citizens might disagree about whose expertise is decisive in relation to the question of what should be done. Different disciplinary specializations, with their different methodologies or different hidden background assumptions, which are often value-­laden, might support different perspectives on what the right decision is, without there being a robust mechanism for aggregating this expertise.27 A related problem is Estlund’s demographic objection to giving more pol­it­ ical power to citizens with more education, for example to established experts (2008: 215). The demographic objection points out that citizens with more education might have other features—­e.g. a blindness towards certain kinds of considerations—­that undermine the epistemic benefits of education and make it controversial whether they should hold political power. The demographic objection warns against attributing competence to those with established expertise given the possibility that this sort of competence is socially one-­sided, thus not amounting to competence proper on the question of what should be done. The demographic objection implies that the identification condition can’t be met simply by turning to those with relevant scientific expertise. If the identification condition can’t be met, there will be disagreements about who the relevant experts are and no conclusive answer to the question of what should be done. Many of those disagreements will be reasonable—­ disagreements that are the result of conflicting beliefs that cannot be dismissed as simple mistakes or unwillingness to consider the evidence, etc. And if there are such reasonable disagreements about what should be done, resulting from the challenge of aggregating expertise, there is no decisive epistemic authority and, as a result, no cognitive political authority.28 25  See Kogelmann (2022) for a discussion of the identification problem for epistocratic conceptions of political legitimacy. 26  Nguyen (2020) has a helpful discussion of some of the problems involved in identifying experts; see also Cholbi (2007) on credentials for expertise on moral issues. 27  For further discussion of this point, see Chapter 8. 28  See also Reiss (2019), Gibbons (2021), and Hedoin (2021) on this issue. Note that, contrary to Reiss, I’m not arguing that there is no unified expertise on the question of what should be done. All

90  The Grounds of Political Legitimacy

(e)  Epistemic Underdetermination Let’s take stock. I’ve argued that the epistemic circumstances of politics are such that three important conditions for the establishment of cognitive pol­it­ical authority are often hard to meet. Cognitive political authority might be unachievable if the evidence is difficult to share or if it is insufficiently robust (body of evidence condition), if there is insufficient expertise on the main political question of what the right decision is in a given context (competence condition), or if it is unclear who has sufficient expertise on that question (identification condition). Not all belief-­based conceptions of political le­git­im­acy are equally affected by these problems, as we saw. Epistocratic conceptions of political legitimacy are perhaps most affected, but inclusive belief-­based conceptions are also affected. This gets us to the core of the epistemic underdetermination objection. This objection against belief-­based conceptions holds that in the normal epi­ stem­ic circumstances of politics, there are many situations in which there is no cognitive political authority on the question of what the right decision is. If the epistemic circumstances are such that there is no decisive epistemic authority on what should be done, because of a violation of either the body of evidence condition or the competence condition, or if it’s not possible to identify decisive epistemic authority, because of a violation of the identification condition, then there will be no uniquely justified answer to the question of what the right decision is in these circumstances. And that means there is no cognitive political authority. There will only be a plurality of valid, but possibly conflicting claims about what should be done. If there is no cognitive political authority, however, then legitimate political decision-­making can’t be based on it, and this restricts the scope of belief-­based conceptions of political legitimacy. In sum, belief-­based conceptions of political legitimacy can be adequate only to the extent that there is cognitive political authority. The epistemic underdetermination objection doesn’t challenge cognitive political authority as a ground of political legitimacy as such, or any particular belief-­based conception. The problem is, rather, that decisive epistemic authority is not normally available in political decision-­making and that means there often is no cognitive political authority as a result. If there is no cognitive political authority, then it can’t be a ground of legitimate political decision-­making. I’m arguing is that it can be challenging to achieve and should be recognized as distinct from expertise on politically relevant subquestions.

5 A Hybrid Account of the Grounds of Legitimacy So far, we’ve focused on the three main accounts of the grounds of political legitimacy, as recognized by will-­based, fact-­based, and belief-­based conceptions of political legitimacy. While they each have their proponents, we also saw that no account is free of problems. Will-­based conceptions face the arbitrariness objection. Fact-­based conceptions face the accessibility objection. And, finally, belief-­based conceptions face the epistemic underdetermination objection. What are the implications of those objections for the possibility of legitimate political decision-­making? I think the answer to this question is that political legitimacy has plural grounds. On a hybrid account of the grounds of political legitimacy, there is more than one attribute of political decision-­making in virtue of which political decisions have the normative property of legitimacy.1 I argue for a hybrid account that involves two grounds of political legitimacy: cognitive political authority and the political will. Such hybrid accounts are not uncommon. But one question that has been overlooked is: what should be the order of priority between the two grounds? I argue that cognitive political authority has lexical priority over the political will. My aim is to show that such a hybrid account supports a plausible conception of political legitimacy—­I call it the epistemic accountability conception—­ that avoids both the arbitrariness and the ­epi­stem­ic underdetermination objections.

5.1  Going Hybrid Before I introduce the epistemic accountability conception of political le­git­ im­acy later in this chapter, it will be helpful to pause for a moment and 1  Chang (2013) advocates a hybrid theory of practical normativity, in general. Her argument for going hybrid is based on what we might call normative underdetermination: there are equally good ­reasons supporting two conflicting actions or decisions. My main argument for a hybrid account of the grounds of political legitimacy is based on epistemic underdetermination: we may not have a sufficiently good grasp of which action or decision is warranted by the normative facts in a given situation. The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0005

92  The Grounds of Political Legitimacy consider the general case for thinking that political legitimacy has plural grounds.

(a)  Taking Stock First, let’s take stock of the argument so far. My discussion of the three main alternative grounds of political legitimacy in previous chapters has uncovered that each faces a serious objection. But the objections vary in strength. As I’ve presented it, the arbitrariness against will-­based conceptions doesn’t imply that the political will can’t be a ground of political legitimacy. It only warns that arbitrariness will result if political decision-­making disregards how the validity of political claims can depend on what should be believed about relevant empirical and normative facts. Using the terminology I introduced in the previous chapter, we can further explicate the problem that the arbitrariness objection raises. The reason why the political will can’t be the sole ground of political legitimacy is that it doesn’t accommodate the citizens’ epistemic accountability. If the epistemic circumstances are such that it is possible to establish cognitive political authority, then epistemic accountability implies that cognitive political authority, not the political will, is the ground of political legitimacy. I’ll further develop this point in the next section (5.2), and then again in Chapter 8, when I discuss political deference. Cognitive political authority can’t be the sole ground of political legitimacy either, however, because of the epistemic underdetermination objection. But as with the arbitrariness objection, the epistemic underdetermination objection doesn’t rule out cognitive political authority as a possible ground of political legitimacy. It merely shows that in the typical epistemic circumstances of politics, cognitive political authority tends to be out of reach. In those epistemic circumstances, there isn’t a uniquely valid judgment about what the right decision is, and what we should believe about what we should do in a given situation can’t settle decision-­making. The accessibility objection against factualism, by contrast, targets normative facts as a ground of political legitimacy as such. If you recall, it holds that normative facts are the wrong ground of political legitimacy because they fail to appropriately guide political decision-­making. To be clear, the accessibility objection doesn’t rule out that normative facts that are accessible in judgment can—­and in some circumstances should—­play a role in the legitimacy of political decisions. But to the extent that normative facts are accessible in judgment, and can determine legitimate political decision-­making in this

A Hybrid Account Of The Grounds Of Legitimacy  93 way, the ground of political legitimacy is no longer given by normative facts as such. What determines political legitimacy, in those cases, is some type of judgment, and the ground of political legitimacy is then either cognitive political authority or the political will. In principle, hybrid accounts differ along two dimensions: what are the grounds of legitimacy and how do they interplay in determining the le­git­im­ acy of political decisions? We might say that the former determines the building blocks of conceptions of political legitimacy and the latter their shape. If my argument against political factualism holds, this implies that all candidate hybrid accounts of the grounds of political legitimacy are built from the same building blocks. There are only two plausible grounds for a hybrid account of the grounds of political legitimacy: cognitive political authority and the pol­it­ ical will. Two questions remain open though. The first is, should we favour a hybrid account over a pure account of the grounds of political legitimacy? And the second is, what shape should a hybrid account take? My aim in the rest of this chapter is to answer both questions. I defend going hybrid and I argue that the right shape is a lexicographic ordering that places cognitive political authority above the political will.

(b)  Hybrid Accounts of the Grounds of Political Legitimacy Hybrid accounts are not uncommon, and there are influential conceptions of political legitimacy that combine cognitivist and voluntarist elements (e.g. Estlund 2008). On some hybrid accounts, the different grounds ­co-­determine political legitimacy, without one ground taking normative priority over the other. Call such accounts of the grounds of political legitimacy no-­priority accounts. On priority accounts, by contrast, the different grounds have different orders of priority. If there are only two grounds of political legitimacy, the two grounds either have equal normative priority (no-­priority accounts), or one ground takes normative precedence over the other (priority accounts). The epistemic accountability conception of political legitimacy that I argue for in this chapter is a priority account—­it involves a lexicographic ordering of the two grounds of legitimacy in which cognitive political authority is the primary ground of legitimacy, and the political will is a secondary ground. This conception needs to be defended against both no-­priority accounts and priority accounts that put the political will first. Let’s focus on the contrast with no-­priority accounts, first. David Estlund’s influential epistemic proceduralist conception of democratic legitimacy is of

94  The Grounds of Political Legitimacy this kind. According to Estlund, political decisions are legitimate if they are made through, or can be traced back to, a democratic decision-­making pro­ ced­ure that “can be held, in terms acceptable to all qualified points of view, to be epistemically the best (or close to it) among those that are better than random” (2008: 98). This conception of political legitimacy involves cognitivist elements, because the legitimacy of a democratic decision-­making procedure depends on its epistemic quality. It also involves the political will, suitably understood, because this conception of political legitimacy requires an agreement among reasonable citizens about the justification of this decision-­ making procedure (“qualified acceptability requirement”—see 2008: 40ff.). The influence of the political will as an additional ground of political le­git­im­ acy is seen in Estlund’s argument that epistocratic procedures would not pass the qualified acceptability requirement. As the characterization I quoted makes clear, I think, neither ground of political legitimacy has priority over the other: in order to generate legitimate decisions, the decision-­making pro­ ced­ure has to both generate (sufficient) cognitive political authority and be supported by the political will, suitably understood. An important test for hybrid accounts of the ground of political legitimacy is how they accommodate the tension between the two grounds. As we saw, cognitive political authority as a ground of political legitimacy implies that the legitimacy of political decisions derives from the evidence-­relative ought, and that citizens are bound by their epistemic accountability. The political will as a ground of political legitimacy implies that the influence of epistemic authority needs to be bracketed to honour the equal political au­thori­ta­tive­ ness of all citizens. A conception of political legitimacy that rests on hybrid grounds but that does not address the normative division of labour between the two grounds of political legitimacy is thus at risk of being unstable because it is pulled in two different directions. The tension itself is well recognized and surfaces in many debates. John Rawls, for example, has been criticized for his “epistemic abstinence” in relation to questions about moral truth (Raz 1990), which Rawls thought was necessary to protect the citizens’ equal political authoritativeness on political matters. Joseph Raz’ service conception, by contrast, has been criticized as ill-­ suited to account for the apparent political legitimacy of democracy because of its requirement that the citizens defer to legitimate political authority, and not rely on their own reasoning (Hershovitz 2003). The tension between cognitive political authority and the political will has pushed many political philosophers to advocate pure accounts of the grounds

A Hybrid Account Of The Grounds Of Legitimacy  95 of political legitimacy, whether as part of a will-­based or a belief-­based conception. As we also saw, however, pure accounts of the grounds of political legitimacy face serious objections, and if a hybrid account leads us towards a conception of political legitimacy that can avoid those objections, it is preferable to a non-­hybrid account. Can the tension between the two grounds be resolved in a conception of political legitimacy that rests on a hybrid account of the grounds of political legitimacy? My answer to this question is yes, but only if one ground is assigned normative priority. In no-­priority accounts, one of the grounds comes under pressure when the tension arises. Within a hybrid account, this can only be avoided by assigning priority to one ground, which is then allowed to trump the other. Consider the problem, first, in the context of Estlund’s epistemic proceduralism.2 As we saw, on that conception, a political decision-­making procedure is legitimate only if it is both of sufficient epistemic quality and if it protects the political will at the same time. Cognitive political authority can’t trump the political will, on this conception, because this would suppress reasonable disagreements on who counts as an expert. As we saw in Chapter 4, Estlund recognizes the identification problem as a serious problem for any epistocratic conception of political legitimacy. Requiring that the decision-­making procedure is acceptable to all qualified points of view is supposed to safeguard democracy against epistocracy. But Estlund is clear that the political will can’t trump cognitive political authority either, as this would lead to pure proceduralism, a family of conceptions of political legitimacy that disregards epi­ stem­ic constraints on political legitimacy and that Estlund rejects for precisely that reason (see Estlund 2008: ch. 4). Because it doesn’t prioritize one ground of political legitimacy over the other, epistemic proceduralism is unstable. To see why, consider how epi­ stem­ic proceduralism would respond to disagreements on the epistemic quality of political decision-­making procedures.3 Suppose that there isn’t just disagreement on who counts as an expert—­the sort of disagreement that Estlund argues is pervasive. Suppose that, on the back of those disagreements, there is also a pervasive disagreement on the epistemic quality of alternative decision-­making procedures—­about which decision-­making procedures can

2  See also Peter (2016) for a discussion of this issue. 3  Gaus (2011b) makes similar points in his discussion of how to “test” whether democracy is the epistemically best procedure.

96  The Grounds of Political Legitimacy be trusted to generate the right outcomes. In a deeply divided society, we should expect these two types of disagreements to move in parallel.4 And if there is a disagreement over the justification of decision-­making procedures, how is that disagreement supposed to be resolved? There are two possibilities here. First, consider the possibility that there is no cognitive authority on which decision-­making procedure is epistemically the best. There is thus scope for reasonable disagreement among those holding qualified points of view on this issue. In that case, the justification of a decision-­making procedure will have to be settled on the basis of non-­ epistemic considerations, for example some sort of compromise among the disagreeing parties. But that means that the general acceptability requirement is decisive, and that makes the political will the primary ground of political legitimacy. The second possibility is that there is cognitive authority on this issue. That is to say, some decision-­making procedure is epistemically best and there is demonstrable expertise on this issue. In that case, what counts as a qualified point of view depends on recognizing that there is cognitive political authority on this issue. There is no scope for a disagreement among those holding qualified points of view on which decision-­making procedure is epistemically best. A disagreement is only possible among those refusing to adopt a qualified point of view. But that makes cognitive authority the primary ground of political legitimacy. We can further illustrate the stability problem that affects no-­priority accounts of the grounds of political legitimacy in the context of a different conception of political legitimacy. Anne Jeffrey’s conception of limited epistocracy combines cognitive political authority—­ through the epistemic authority of expert institutions—­ with elements of democracy. As she describes it (2018: 412), limited epistocracy is qualified rule by expert institutions, where the institutions get their pol­it­ ical authority in virtue of their specialized knowledge and their ability to generate optimal solutions in the way of, for instance, health, environmental sustainability, technological security, and border regulation. . . . [L]imited epistocracy is a viable and preferable alternative to democracy because of its ability to produce better outcomes while also realizing the value of political inclusion. 4  See Talisse 2019 on the depth of political polarization. O’Connor and Weatherall (2018) argue that even truth-­seeking scientists may develop polarized views.

A Hybrid Account Of The Grounds Of Legitimacy  97 As I understand this conception of political legitimacy, it is a broadly democratic conception of political legitimacy, but which outsources the permission to make binding political decisions to expert institutions in matters where there is established cognitive political authority—­for example in matters relating to public health, or environmental sustainability. How is the relationship between the two grounds of political legitimacy supposed to be understood? On what ground is the outsourcing, in particular, justified? On a no-­priority interpretation of limited epistocracy, the out­sour­cing is justified on the basis of the cognitive authority of the expert institutions, while any decisions that are not outsourced in this way are democratically legitimized, thus involving the political will as a ground of legitimacy. For this to work, we’d have to assume that there is no conflict between the two grounds. But what happens if the citizens contest the authority of the expert institutions, for example? Jeffrey acknowledges this possibility and suggests in response that the power of the expert institutions be limited to giving the citizens options for further deliberation and then democratic choice (2018: 430). But what if some citizens reject all options offered by an expert institution, say out of a deep distrust of scientific expertise as manifest in some anti-­vaxx circles? Do we then want to maintain that cognitive pol­it­ical authority can still underpin a permission to make binding political decisions? If the answer to this question is yes, this means that cognitive political authority can trump the political will. If the answer is no, then the political will can trump cognitive political authority. Either way, this would mean that the no-­priority conception has become unstable and collapses into a priority conception. Of course, Jeffrey can respond to this by saying that a group of anti-­vaxxers might not be able to resist the recommendations of the expert health institution on reasonable grounds. But to suggest that the citizens have reasons to defer to expert institutions in those cases is just to suggest that cognitive political authority has priority over the political will, as Jeffrey also recognizes (2018: 424). And if there is cognitive political authority on what should be done, then not requiring the citizens to defer is to let the citizens’ will trump cognitive political authority, which would undermine the epistocratic elem­ent of the proposal. These considerations lead me to think that Jeffrey’s limited epistocracy proposal is better interpreted as involving a priority account of the grounds of political legitimacy and, more specifically, one that shares the same order of priority between the two grounds of legitimacy as the epistemic ac­count­abil­ity conception that I advocate. On this interpretation, limited epistocracy holds

98  The Grounds of Political Legitimacy that political decisions are legitimate if they are made by an expert institution, given the established cognitive political authority of such institutions, or, on issues for which there are no expert institutions with cognitive authority, if they are made as part of an inclusive democratic decision-­making process. As we’ll see in the rest of the book, the epistemic accountability conception that I favour doesn’t require outsourcing decision-­making power wholesale to expert institutions. So it differs from Jeffrey’s limited epistocracy conception in its practical and political details, even though they share the same meta-­ normative commitments.

(c)  The Epistemic Accountability Conception of Political Legitimacy It’s time to introduce the epistemic accountability conception properly. According to the epistemic accountability conception, a political decision is legitimate in virtue of according with the recommendation of cognitive pol­it­ical authority, when cognitive political authority is available, or, when cognitive political authority is not available, in virtue of appropriate adjudication between the conflicting, but valid political claims made by the citizens. On this epistemic accountability conception, cognitive authority is the primary ground of political legitimacy and the political will, suitably understood, is the secondary ground. Let’s consider some illustrations of the basic idea. First, recall the (hypothetical) bridge case that I introduced in Chapter 4. What determines the legitimacy of a decision concerning a new bridge? The case assumes that there is epistemic authority on the question under consideration (is the new bridge stable?), and that epistemic authority can be established with sufficient robustness. The available epistemic authority is thus decisive. According to the epistemic accountability conception, in a case like this, the relevant ground of legitimacy is cognitive political authority, not the political will. Given that there is cognitive political authority, democratic legitimization is either normatively redundant (if it’s informed by the epistemic accountability of the citizens or the decision-­makers, and just confirms the decision by the town engineer), or unduly reckless (if it risks leading to a decision that goes against the engineer’s recommendation). As I also mentioned in Chapter 4, I think that the scenario at the start of the Covid-­19 pandemic in late 2019 and early 2020 is a real-­life scenario that in many ways came close to the bridge case. It is a good illustration, I think, of

A Hybrid Account Of The Grounds Of Legitimacy  99 how cognitive political authority can be operative as a ground of political legitimacy, and constrain the legitimizing force of the political will, even in broadly democratic regimes. As described at the beginning of Chapter 4, governments around the world faced challenging political decisions in light of the threat of this new Coronavirus. While much was unknown about the  virus at this stage, most epidemiologists, public health experts, and practitioners with experience in managing outbreaks of highly infectious diseases quickly agreed that, if not contained, the virus would spread exponentially, overwhelm health care services, and lead to many avoidable deaths. Almost all governments followed suit and imposed far-­reaching, highly restricting, and coercive lockdown measures to contain the virus. Those that did not, or moved too slowly, came under pressure from their own scientific advisors, governments of neighbouring countries, as well as the WHO. This was an unusual moment in recent political life, for all sorts of reasons. But importantly for the point I’m trying to make here, one striking feature of this moment was that there was unusually robust expertise on what needed to be done that drastically limited the courses of action that governments could permissibly take. True, there were some dissenting views, and a small number of governments, such as Sweden, for example, initially took a different course. Even the Swedish government eventually moved more in line with other countries, however, perhaps in response to ongoing international expert scrutiny, as well as in recognition of its much worse performance compared to its Scandinavian neighbours. Because that initial strong expert consensus appears warranted, even in retrospect, I thus want to claim that the case of early Covid-­19 decision-­making is a case in which it was cognitive political authority, not responding to the political will, that determined the legitimacy of the decisions that were made at the time. The immigration case that I’ve already mentioned (in Chapter 2) also serves to illustrate how cognitive political authority—­when it obtains—­limits the room for manoeuvre for even democratically elected governments and, in this way, trumps the political will as a ground of political legitimacy. If you recall, one of the decisions the Trump administration made was to enforce an immigration law that was passed during the time of the Obama administration. The new policy allowed for the separation of small children from their families. The news was full of horrifying pictures of children in cages, and there was a big outcry at the moral monstrosity of this policy. It looks like the decision had all the required credentials of democratic due process. Yet I want to claim that the decision was illegitimate, and what made it illegitimate was

100  The Grounds of Political Legitimacy that it went against established cognitive political authority, in this case in relation to the needs of small children. I think it’s highly likely that decision-­making related to climate change will create new situations in which cognitive political authority is the relevant ground of political legitimacy. This said, the case of climate change also serves to illustrate the limits of cognitive political authority in the normal epistemic circumstances of politics as well as the importance of the political will. For many years now, there has been robust expertise on the fact that climate change is happening and threatening lives and livelihoods, in many countries. We appear to have a very robust body of expertise, supported by an inter­ nation­al expert consensus, on many issues that are relevant to the management of climate change—­for example on the effects of greenhouse gases, or of ice caps melting, etc. Yet, compared to the Covid-­19 case, it can be argued that until recently, it was more difficult to establish decisive epistemic authority on what needed to be done at a particular point in time by whom. This would suggest that there was legitimately more wriggle room for a government in choosing its course of action. If that’s the case, then the ground of legitimate political decision-­making is not cognitive political authority, but some other ground—­say the fact that the government has been demo­crat­ic­ al­ly elected. As the climate crisis is peaking, however, that wriggle room is shrinking, and the case of legitimate decision-­making in the face of the threats of climate change starts to resemble the Covid-­19 case. The first two cases serve to illustrate the normative priority of cognitive political authority. But the third case helps to illustrate the limits of cognitive political authority as a ground of political legitimacy. As such, it raises the question: what creates political legitimacy when cognitive political authority is epistemically underdetermined? The epistemic accountability conception posits that when there is no cognitive political authority, the legitimacy of political decision is determined on a secondary ground. That secondary ground of political legitimacy involves an appropriate response to the lack of cognitive political authority, and to the associated plur­al­ity of valid political claims. As we saw in Chapter 2, will-­based conceptions explain the permission to make binding political decisions on the ground of how those decisions, or how they are made, respond to the equal authority of the citizens, that is to say, their equal capacity to make valid political claims. As we also saw, this capacity is explained in terms of a view of persons as self-­originating sources of valid claims. We don’t need to accept this view of persons, however, to recognize that when there is no cognitive political authority, then political legitimacy depends on how political

A Hybrid Account Of The Grounds Of Legitimacy  101 decision-­making adjudicates between the plurality of valid political claims. Thus the secondary ground of political legitimacy is the political will, suitably understood. Given the typical epistemic circumstances of politics, we shouldn’t expect cognitive political authority to be the main ground of political legitimacy. Instead, while cognitive authority has normative priority, we should expect the political will, suitably understood, to be the main ground of political legitimacy in epistemically challenging political environments. Still, as I’ll explain in much more detail later on in this chapter (Section 5.3), even if the political will is the main ground of political legitimacy in the typical epistemic circumstances of politics, the epistemic accountability conception restricts the legitimizing force of the political will by cognitive political authority, when it can be established. I call it the epistemic accountability conception of political legitimacy for two reasons. The first is to highlight that epistemic considerations play a role in what citizens can be held accountable for, including by themselves, and hence in determining the permission to make binding political decisions. That epistemic considerations matter in this regard is a response to the arbitrariness objection that I raised against will-­based conceptions of legitimacy (Chapter 2), and it follows from my rejection of Darwall’s standing objection against belief-­ based conceptions of political legitimacy in Chapter 4. I argued, if you recall, that Darwall is right to trace the bindingness of political decisions to what we can hold ourselves accountable for. But I also argued that this doesn’t commit us to a will-­based conception of political legitimacy. The second reason for naming it the epistemic accountability conception is to highlight that political decision-­makers are not just accountable to the members of the population, contrary to how political accountability is normally construed on democratic theories. Political decision-­makers such as a government or a representative of a government agency will lose legitimacy if they make political decisions that are contrary to the recommendations of cognitive political authority, in circumstances where cognitive political authority is within reach. As I’ll explain in more detail in Chapter 9, the epi­ stem­ic accountability conception thus offers resources to identify pernicious forms of populism, and to draw a distinction between legitimate and il­le­git­ im­ate appeals to the political will. In sum, the core claim of the epistemic accountability conception of pol­it­ical legitimacy, which rests on a hybrid account of the grounds of political le­git­ im­ acy, is that cognitive political authority is the primary ground of

102  The Grounds of Political Legitimacy pol­it­ical legitimacy, and the political will, suitably understood, is a secondary ground, decisive in circumstances where there is no cognitive political authority on what should be done. It seems to me that the epistemic ac­count­abil­ity conception offers an attractive alternative to more common conceptions of political legitimacy, yet it tends to be overlooked. I think that’s because cognitive political authority is epistemically underdetermined in the normal epistemic circumstances of politics, such that the political will becomes the main ground. But that shouldn’t mislead us into thinking that the political will also has normative priority over cognitive political authority.

5.2  Epistemic Constraints on the Political Will Now that we have a rough sketch of the epistemic accountability conception, I need to defend its core ideas. First, I focus on the claim that cognitive political authority has normative priority. As part of my argument in this section I also address the contrast between the epistemic accountability conception and a priority view that prioritizes the political will. In the final section of this chapter, I develop and defend the idea that while the political will can’t trump cognitive political authority, the political will is an important secondary ground of political legitimacy.

(a)  The Priority of Cognitive Political Authority Even if we accept the argument in support of a priority account, why think that cognitive authority, rather than the political will, should have normative priority? My answer to this question draws on my defence of belief-­based conceptions of political legitimacy in Chapter 4. It involves the evidence-­ relative ought and our epistemic accountability. As I explained in Chapter 1, the normative status of the evidence-­relative ought that cognitive political authority captures derives indirectly from the normative status of normative facts. If we reject political factualism, as I’ve done in Chapter 3, this implies that a political decision being warranted by the normative facts in given circumstances is neither necessary nor sufficient for the legitimacy of a political decision. But even if factualism is rejected, we should still aim to form correct beliefs about which political decisions are favoured by the normative facts. So normative facts may play an indirect role in a conception of political legitimacy, via our beliefs about them. I agree

A Hybrid Account Of The Grounds Of Legitimacy  103 with Raz (1990) that if the political cognitivist premise applies and political decisions can be right independently of political decision-­ making, then “­epi­stem­ic abstinence” is not an option and the evidence-­relative ought needs to be factored into an account of the grounds of political legitimacy. This line of thought led me to argue, in Chapter 4, that cognitive political authority is a ground of legitimacy because it captures a position of epistemic advantage in relation to the question of what the right political decision is in given circumstances. If it is possible to establish, with sufficient robustness, what the right decision is in given circumstances, then this is normatively significant. In addition, the argument from epistemic accountability that I also developed in Chapter 4 shows why cognitive authority, if it’s available, has priority over the political will. I’ve argued that persons are not necessarily self-­ originating sources of valid claims because the validity of at least some claims about what should be done depends on what should be believed about relevant empirical and normative facts. I’ve also argued that the sort of claims we are accountable to, and can hold ourselves accountable to, is not limited by our own epistemic resources, but can extend to claims made by those in a position of epistemic advantage. If this picture is correct, it follows that the permission to make binding political decisions depends on whether the citizens respond adequately to cognitive political authority, when cognitive political authority can be established, and not on the political will. Cognitive political authority, when it can be established, thus has priority over the pol­it­ ical will. Note that my argument here is strictly about the ground of political le­git­ im­acy, not about who should be making political decisions. That cognitive political authority has normative priority over the political will is compatible with political decisions being made by democratically elected governments.5 In both the bridge case and the Covid-­19 case, the decisions are made by politicians, not by bodies of experts. But what makes political decisions le­git­ im­ate, in those cases, is that they follow the recommendations of cognitive political authority. I’m also not suggesting that in these cases, there is a necessary conflict between the legitimate political decision and the views of the citizens, as that would be false and misleading. To see why, consider a finding from a study

5  As I see it, the justification for having democratically elected governments is that the question of who should be in government is not normally a question on which we have cognitive political authority. So the political will is an appropriate ground for decisions of this kind.

104  The Grounds of Political Legitimacy led by Cristina Bicchieri on compliance with Covid restrictions, covering nine different countries. Bicchieri and her team (2021) found that the main predictor of compliance with those restrictions was country-­level trust in ­science, not trust in government. This finding illustrates that in cases where cognitive political authority is the ground of political legitimacy, this need not imply that legitimate political decision-­making will inevitably be met with resistance from the citizens. Cognitive political authority not only determines what decisions should be made, it also reflects what the citizens have reason to do. When all goes well in such circumstances, governments and those subject to their decisions defer to cognitive political authority. There is thus no necessary conflict between cognitive political authority and the political will, but that should not mislead us to think that the ground of political legitimacy is the political will, not cognitive political authority, in such cases.

(b)  Limiting Arbitrariness The epistemic accountability conception prioritizes cognitive authority to ensure that legitimate political decision-­making tracks the right decisions, when the epistemic circumstances allow for this. In doing so, it offers a solution to the arbitrariness objection that purely will-­based conceptions face. As we already saw, the arbitrariness objection doesn’t imply that the pol­it­ ical will can’t be a ground of political legitimacy. It only highlights that the political will is the wrong ground of political legitimacy if the equal political authoritativeness premise is in tension with what the citizens should believe about what should be done. The argument from epistemic accountability that I presented in Chapter 4 develops this point, explaining why the permission to make binding political decision derives from cognitive political authority, when it is available, and not from equal political authoritativeness. And given that cognitive political authority can be a ground, the arbitrariness objection holds that political decisions that ignore cognitive political authority, when it’s available, lack legitimacy. Arbitrary political decisions are those that are made ignoring cognitive political authority (either in the form of recommendations from those with established epistemic authority on a certain issue, or in the form of results of an epistemically robust process of collective decision-­making on this issue). Because the epistemic circumstances of politics are not normally favourable, cognitive political authority is often unavailable as a ground of political

A Hybrid Account Of The Grounds Of Legitimacy  105 le­git­im­acy, however. And when it’s unavailable, the arbitrariness objection against the political will doesn’t bite. Moreover, as I’ll argue in more detail later in this chapter, when cognitive political authority is epistemically underdetermined, the political will, suitably understood, becomes the decisive ground of pol­it­ical legitimacy. By prioritizing cognitive political authority over the political will, the epi­ stem­ic accountability conception avoids the arbitrariness objection, without denying that the political will can be a proper ground of legitimacy. In might be helpful to note that this way of thinking about the grip that epistemic con­ sid­ er­ ations have on political legitimacy differs from the instrumentalist understanding that is found in some arguments for epistocracy and in some arguments for epistemic democracy.6 On an instrumentalist understanding, what is important for political legitimacy is the likelihood that political decision-­making tracks the right decisions. On the epistemic accountability conception, what is important for political legitimacy is that cognitive pol­it­ ical authority, when it is within reach, is not ignored. If cognitive political authority is not within reach, because of epistemic underdetermination, then the relevant ground of political legitimacy is the political will, not cognitive political authority. The epistemic accountability conception thus does not imply that legitimate political decision-­making should aim to increase the likelihood of making the right decisions. In my view, this misconstrues the normative ground for the permission to make binding political decisions (see also Lafont 2020). Cognitive political authority is either within reach, in which case it determines political legitimacy because of epistemic ac­count­ abil­ity, or it is not, in which case it can’t be a ground of legitimacy. Taken together, the arbitrariness objection and the argument from epi­ stem­ic accountability show that we cannot categorically rule out cognitive authority as a ground of political legitimacy, nor bracket epistemic con­sid­er­ ations as irrelevant for the political domain. Instead, we need to explore the appropriate place of cognitive authority in legitimate political decision-­ making. I will ­pursue this issue in Part II of the book. But first, we need to take a closer look at the role of the political will in the epistemic ac­count­abil­ ity conception.

6 Bovens and Rabinowicz (2003) argue that a premise-­based approach to collective decision-­ making can avoid the instrumentalism of a conclusion-­based approach.

106  The Grounds of Political Legitimacy

(c)  Can the Political Will Legitimately Trump Cognitive Political Authority? To strengthen the argument in support of the normative priority of cognitive political authority, let’s consider the opposite view, according to which ­pol­it­ical legitimacy requires that the political will trumps any epistemic considerations. Will-­based conceptions of political legitimacy, as we saw, tend not to place much emphasis on epistemic constraints on the validity of political claims. But, as I argued in the context of the arbitrariness objection, that poses a problem for those conceptions. Minimally, a conception of political le­git­im­ acy will have to make some room for respect for epistemic constraints on practical reasoning in relation to beliefs about the non-­normative circumstances of political decision-­making. Most will-­based conceptions allow for that, in one way or another (e.g. Christiano 2012; Lafont 2020). What defenders of will-­based conceptions, or of hybrid conceptions that prioritize the political will, reject is that cognitive political authority could ever trump the political will. They appear to be moved by two main objections against this idea. The first objection, as we already saw, is meta-­normative. It stems from a version of what I’ve called the standing objection, which holds that epistemic authority can’t form a ground of political le­git­im­acy. I’ve already considered this meta-­normative objection and won’t consider it any further here. I haven’t yet considered a second objection, which is normative, however. It holds that there are normative reasons for prioritizing the political will over cognitive political authority. One main motivation for this objection is a concern with coercion, as I mentioned in Chapter 2. Anna Stilz, for example, in her defence of a will-­based conception of political legitimacy argues that there is an important normative difference between unilateral political coercion, in which there is no causal process that connects a political decision to the citizens’ political will, and omnilateral coercion, in which there is such a causal process. Her own example is of France hypothetically deciding to annex Libya with the aim of restoring democratic rights for the Libyan citizens. Stilz argues that even though the unilateral annexation would secure greater just­ ice for the citizens of Libya, such a political decision would not be legitimate because it disregards the political will of the citizens of Libya. Note, first, that to make the example relevant to the discussion of the epi­ stem­ic accountability conception, we should assume that there is cognitive authority on what justice requires in this case. So the comparison isn’t

A Hybrid Account Of The Grounds Of Legitimacy  107 between a decision based on the political will and one that would, in fact, be what justice requires (political factualism), but between a decision based on the political will and one that responds to cognitive political authority in this matter. In addition, note that Stilz’ particular example involves different pol­it­ ical constituencies, but I’m bracketing the so-­called boundary problem in this book, for reasons I explain in Chapter 1. Still, we can identify an analogous problem for a given constituency. The general problem is whether there are reasons to prioritize the political will over cognitive political authority, even when deciding on the basis of cognitive political authority would lead to the right decision in a particular situation—­say the decision required by justice. And the objection against the epistemic accountability conception that we need to consider is that because there are such reasons, the epistemic accountability conception of political legitimacy is mistaken. In a scenario analogous to the Libya case, I would want to agree with Stilz that the political decision is not legitimate, of course. Can the epistemic accountability conception accommodate this verdict? I think it can. To see this, it will be helpful to distinguish between moral reasons and prudential reasons for prioritizing the political will over cognitive political authority. Can there be moral reasons for prioritizing the political will even when cognitive political authority is within reach, for example reasons that relate to the protection of collective autonomy or self-­determination? This way of approaching the issue suggests that there could be moral reasons that apply to a particular situation, but that are not already factored in the establishment of cognitive political authority. But that’s not how I’ve characterized cognitive political authority. If there is cognitive political authority on a particular issue, that means that all relevant moral reasons have been factored in. So if, say, collective autonomy is a critical value in a given situation, then there couldn’t be cognitive political authority that is in conflict with it. Either the political decision would involve wrongful coercion, in which case there couldn’t be cognitive political authority in this matter, or the significance of collective autonomy is trumped by other considerations. From this point of view, the more natural interpretation of the Libya example is that there is no cognitive political authority in this matter, and that explains why the political will has to be the ground of political legitimacy. My point can be further strengthened if we recall that the conditions for cognitive political authority are very demanding (see Chapter 4). So the epi­ stem­ic accountability conception doesn’t hold that whenever there is good reason to think that some decision would be beneficial in some sense, that’s

108  The Grounds of Political Legitimacy sufficient for overriding the political will as a source of legitimacy. The point is, rather, that when those demanding conditions are met, epistemic ac­count­ abil­ity binds the citizens’ will to cognitive authority, thus overriding the political will, with its commitment to equal political authoritativeness, as a source of legitimacy. In a scenario like the one invoked in Stilz’ Libya example, these demanding conditions do not appear to be met. Instead of showing that there are moral reasons for prioritizing the political will over cognitive authority, I think the case is more naturally interpreted as showing that the conditions for cognitive political authority are not met. Relevant evidence might not have been considered—­e.g. evidence relating to what it’s like to live under an imperial power’s rule. I would also want to question whether available expertise is decisive in this case, or whether there’s only expertise on issues that bear on the political decision—­say on the conditions for economic growth—­but not on the question whether Libya should be annexed, all things considered. Finally, there might be an issue with identifying relevant expertise, and there might be scope for disagreement over who, if anyone, holds sufficient political expertise in this matter. If the conditions for cognitive political authority are not met, however, then, consistent with the epistemic accountability conception, there is no ground for overriding the political will. In a scenario where those conditions are met, by contrast, the case for prioritizing the political will for moral reasons crumbles. Consider the following case. Suppose that because of climate change, a whole population’s survival is at risk, and the conditions for cognitive political authority are met in this case. We can imagine this case in parallel to the bridge case that I introduced earl­ ier. In a scenario like this, whatever moral reasons there are for the protection of collective autonomy, say, they won’t be weighty enough to override the normative priority of cognitive political authority. If we can’t make a case for prioritizing the political will on the basis of moral reasons, what about prudential reasons, for example reasons that have to do with managing the citizens’ trust and the potential for conflict? To be sure, as I mentioned earlier (Section 5.1), we shouldn’t assume that prioritizing cognitive political authority is necessarily in tension with the citizens’ will. Still, I think there will often be strong prudential reasons for seeking the ­citizens’ support, even when there is cognitive authority. A government that attempts to govern in the face of strong resistance will struggle, and that struggle will be costly, divert energies, and attempting to manage the resistance might well become a source of political harm in itself. Even if there is

A Hybrid Account Of The Grounds Of Legitimacy  109 cognitive political authority, there are thus prudential reasons to seek the ­citizens’ support for political decisions. Note, however, that this doesn’t show that the political will is the ground of political legitimacy. Instead, we need to recognize that while cognitive pol­it­ical authority is necessary for political legitimacy, when it can be established, it may not be sufficient. How a government acts on cognitive political authority matters for political legitimacy. To protect and preserve the permission to make binding decisions that cognitive political authority affords, additional conditions will apply, including conditions about how the public should be informed and consulted. For example, where possible, a government should make transparent the evidence that supports cognitive political authority, to avoid unnecessarily triggering resistance, protests, or other forms of the withdrawal of assent.7 To illustrate the point, one thing that I think was particularly effective about New Zealand’s approach to Covid management in the early phases of the pandemic was the clarity of the messaging by the government on this issue. While the measures the government took were highly intrusive, the government succeeded in communicating their necessity and, further down the line, also their effectiveness. As a result, the government enjoyed high trust and approval for its approach. Can there be prudential reasons for overriding the recommendations of cognitive political authority in favour of accordance with the political will? I think that’s possible, but such reasons are only likely to outweigh cognitive political authority in low-­stakes cases. In a high-­stake case, where the lives and livelihoods of millions of people are at risk, as in a climate emergency scenario, prudential reasons for prioritizing the political will are likely to be outweighed—­as nicely illustrated in the movie Don’t Look Up. Instead, it’s more likely that there will be strong prudential reasons for managing the ­citizens’ expectations better, to help avoiding the disastrous outcome.

5.3  Responding to Epistemic Underdetermination In the previous section, I argued in support of the lexicographic priority of cognitive political authority over the political will. Importantly, however, because the epistemic circumstances of politics are often unfavourable, the 7  Nguyen (2021) highlights how calls for transparency might be in tension with good government based on cognitive political authority. I return to this issue in Chapter 8.

110  The Grounds of Political Legitimacy normative priority of cognitive political authority doesn’t imply that cognitive political authority can function as the main ground of political legitimacy in everyday political decision-­making. More often than not, the answer to the question of what we should believe we should do is epistemically underdetermined. What makes political decisions legitimate when there is no cognitive pol­it­ ical authority? That question is important, given the epistemic under­deter­ min­ation objection against belief-­based conceptions of political legitimacy that I introduced in Chapter 4. If the scope for legitimate political decision-­ making based on cognitive authority is limited, there must be a secondary ground of political legitimacy, and that secondary ground is the political will, appropriately understood. My aim in this final section of this chapter is to defend this solution to the problem of epistemic underdetermination.

(a)  Implications of Epistemic Underdetermination To start, it will be helpful to take a closer look at the implications of the epi­ stem­ic underdetermination objection. If there is no uniquely valid claim about what should be done, but only a plurality of potentially valid claims, belief-­based conceptions will treat the alternative decisions that these claims support as normatively on a par, in one of two ways. On one interpretation of belief-­based conceptions, such decisions are all equally legitimate, and there is thus no further guidance on how to choose. But that is unhelpful, especially if the circumstances of politics tend to make cognitive political authority the exception rather than the norm. Political decisions will have to be made even if there is no cognitive political authority, and a conception of political le­git­ im­ acy should be able to settle what should be done even under those un­favour­able epistemic circumstances. On another interpretation, which looks worse, belief-­based conceptions imply that political decisions made without cognitive political authority will be illegitimate. We can explain this by pointing out that if there is no cognitive political authority, and only a plurality of potentially valid claims, then basing political decisions on one of them does not imply that the citizens should defer in their theoretical and practical judgments, and that means that such decisions can’t be binding. But that seems to be the wrong answer. First, it is self-­undermining because it implies a move to decentralized decision-­ making—­to anarchy. But that would itself count as a political decision about which we could ask whether it is legitimate and if there is no cognitive

A Hybrid Account Of The Grounds Of Legitimacy  111 authority on how to answer that question, there is no escaping from the regress. Second, it is insufficiently fine-­grained. We should expect that some decisions will be better candidates for having the property of legitimacy than others. The move to anarchy may well be less justifiable than an alternative political decision, and a plausible conception of political legitimacy should be able to explain this. On either interpretation of the implications of epistemic under­deter­min­ ation, it thus is clear that belief-­based conceptions are incomplete, perhaps misleadingly so. It follows, I take it, that a plausible conception of political legitimacy must solve the problem of epistemic underdetermination, and draw on a second ground of political legitimacy when there is no cognitive political authority.

(b)  Political Legitimacy without Cognitive Political Authority Will-­based conceptions are right to highlight that how political decisions should be made in the absence of cognitive political authority is an important problem of legitimacy. Of course, as we saw, will-­based conceptions focus on this problem because they reject cognitive political authority altogether as a ground of political legitimacy, and endorse the citizens’ equal political authoritativeness over political decisions instead. In Chapter 4 and in the previous section (5.2), I’ve argued against this theoretical stance. Even if we reject a principled stance against cognitive political authority, there is a second, less principled strategy for defending the significance of the citizens’ equal authoritativeness, and the epistemic accountability conception makes use of this strategy. We find elements of this strategy in Rawls’ “burdens of judgment” argument (Rawls 1993: 55f.). The burdens of judgment are a list of features of political deliberation that undermine the possibility of reaching a decisive conclusion about what the right political decisions are, even among rational and well-­intended citizens. An important part of Rawls’ argument is that political deliberation is subject to extensive epistemic limitations—­for example due to the complexity of the evidence (Rawls 1993: 56). As a result, it tends to remain epistemically underdetermined what the right political decision is, with different groups of citizens reaching different conclusions. Rawls’ political liberal conception of political legitimacy invokes the burdens of judgment as part of an argument in support of the importance of reasonable agreement, not correctness, as the main standard of political

112  The Grounds of Political Legitimacy justification. That is to say, Rawls argues that because the burdens of judgment tend to leave political deliberation epistemically underdetermined, political justification requires some form of agreement among the citizens and can’t be based on what I’ve called cognitive political authority. This argument can be read as supporting the political will as a ground of political le­git­ im­acy because the epistemic circumstances of political life are such that cognitive political authority is inevitably epistemically out of reach.8 My argument for the epistemic accountability conception has a parallel in Rawls’ burdens of judgment argument. The parallel is that the epistemic accountability conception also holds that the epistemic circumstances in which political decisions are being made matter for the explanation of the significance of the political will as a ground of political legitimacy. Rawls, of course, argued that the epistemic circumstances of politics make the political will the only possible ground of political legitimacy. I’m more optimistic about cognitive political authority. The epistemic accountability conception doesn’t reject cognitive political authority altogether as a ground of le­git­im­ acy; it merely holds that the epistemic limitations are typically such that cognitive political authority is unavailable. So far, I’ve focused on epistemic underdetermination as the main obstacle for legitimate political decision-­making based on cognitive political authority. I think that epistemic underdetermination is a very important, but overlooked factor in the explanation of the normativity of the political will. I should add, however, that in some circumstances, there is a second reason why cognitive political authority can’t be a ground of political legitimacy. And that’s because for some political decisions, the issue isn’t that we can’t cognitively access what the right decision is. Rather, the issue is that in some cases there is no right decision independently of the political will. Consider the following example. Suppose a town has to decide whether or not to go ahead with plans for a new town hall. And suppose that while there is no controversy in relation to the budgetary or environmental impact of the planned building, there is a difference of opinion in relation to the proposed design. Some citizens like the design and others hate it, and let’s assume there isn’t a fact of the matter here about whether or not the design is good—­it’s ultimately just a matter of taste.

8  Rawls (1974) argues along similar lines. Viehoff (2016) discusses epistemic limitations of epistocracy. See also Arendt’s essay on “Truth and Politics” on this issue (Arendt 1993), and Landemore’s discussion of it (2013: 224ff.).

A Hybrid Account Of The Grounds Of Legitimacy  113 Call this problem value underdetermination. In the town hall case and similar scenarios, there is no cognitive political authority, but not for epi­ stem­ic reasons. Instead, in value underdetermination cases, there is no right decision that legitimate decision-­making might track; there is only a plurality of conflicting values. In Chapter 9, I argue that, contrary to what is often assumed, epistemic underdetermination is the more serious problem for political legitimacy. But it’s important to acknowledge that at least some instances of legitimate political decision-­making have to grapple with value underdetermination, and that provides a further argument for the political will as a ground of political legitimacy. Let me also add that Rawls’ list of the burdens of judgment recognizes the problem of value underdetermination, alongside the problem of epistemic underdetermination. Value underdetermination arises in scenarios where conflicting values are incomparable—­for example because they reflect the diverging tastes of different citizens—­or where values of equal weight are not jointly realizable (Rawls 1993: 57). To be clear, not all burdens of judgments that bear on assessing normative political claims are due to value under­deter­ min­ation. In many cases, as Rawls also recognizes and I argue at length in Chapter 9, difficulties with assessing normative political claims arise from epistemic underdetermination. To illustrate, Rawls highlights that our assessment of moral and political values is shaped by our total life experience, which makes it difficult to share our evidence (Rawls 1993: 57, item d). Similarly, the fact that conflicting normative considerations are often very difficult to weigh (item e) need not imply value underdetermination. This may be a problem of epistemic underdetermination, resulting from the cognitive challenge of accurately grasping and comparing subtle differences in normative weight.

(c)  Responding to a Plurality of Valid Claims If there is no cognitive political authority, either because of epistemic under­ deter­min­ation or because of value underdetermination, this means that there is potentially a plurality of valid claims about what should be done and why, and these claims might be conflicting, favouring different political decisions in a particular situation. And if there is a plurality of conflicting but valid claims about what should be done, the problem of legitimacy that will-­based conceptions highlight resurfaces: legitimate political decision-­making needs to somehow respond appropriately to the plurality of valid political claims.

114  The Grounds of Political Legitimacy Decisions will remain validly contested and this undermines both the ­permission to make those decisions and their capacity to bind the citizens. To see the problem, consider first the permission to make political decisions. If there is a plurality of valid claims, what can ground a permission to decide in favour of one contested alternative over another? Consider a decision to expand airport capacity. Suppose some argue that further capacity is much needed, given a current bottleneck situation that is predicted to become more serious, driving up prices and bringing the flight schedule in conflict with bans on night traffic. Others argue that, like with roads, more capacity creates more traffic and enhancing airport capacity will thus not address the bottleneck problem. They also argue that more capacity will have detrimental effects on environmental quality and quality of life for adjacent communities. Let’s assume that, in light of both the available evidence and the available expertise, both claims—­for and against expansion—­are valid. While some citizens are persuaded by the first claim, others are persuaded by the second.9 What creates a permission to decide one way or another in such a case? In a case where there is cognitive political authority, the permission to decide accordingly arises from the unique validity of a claim about what should be done. What creates a permission to make a political decision when there are equally valid but conflicting claims? Decision-­making must then somehow respond to this pluralism and that means that political legitimacy must have a  different ground. This secondary ground must be given by how political decision-­making responds to the plurality of valid claims. The legitimacy problem will become even clearer if we focus on the cap­ acity to make binding political decisions. As you might recall, I’ve argued, following Darwall, that the bindingness of political decisions depends on citizens’ being able to hold themselves accountable to act as directed by pol­it­ical decisions. I’ve also argued, against Darwall, that this doesn’t commit us to seeing persons as self-­originating sources of valid claims. We can hold ourselves accountable in relation to claims that others make, e.g. in the form of testimony. If, because of epistemic or value underdetermination, there is a plurality of claims that citizens recognize as valid, however, there is a problem. If there is no uniquely valid claim about what should be done, the cap­acity to make a binding decision then depends on how political decision-­making responds to this plurality of valid claims. If political decision-­making ignores

9  This is a very rough sketch. I’ll elaborate on the details of this understanding of the validity of political claims in Chapters 6 and 9.

A Hybrid Account Of The Grounds Of Legitimacy  115 this plurality, the citizens’ whose valid claims are ignored can complain that the decision is not binding for them.

(d)  The Conditional Normativity of the Political Will On the epistemic accountability conception that I am developing here, how political decision-­making responds to a plurality of valid claims is a secondary ground of political legitimacy that becomes relevant when there is no cognitive political authority, whether it’s for epistemic reasons, because there is no decisive epistemic authority on what the right decision is in a particular situation, or for reasons to do with value underdetermination. We can describe the main idea here as attributing conditional normativity to the political will. The political will is recognized as an important ground of political legitimacy, but only if the circumstances are such that there is no cognitive political authority on the relevant issue. Will-­based conceptions of political legitimacy, or priority conceptions of political legitimacy that pri­ori­ tize the political will, by contrast, treat the problem of how to adjudicate between conflicting valid claims as normatively fundamental for political legitimacy. They do so because of a commitment to the equal political au­thori­ ta­tive­ness of the citizens. The epistemic accountability conception rejects that principled commitment, as we saw, because it can lead to undue arbitrariness. While it treats the normativity of the political will as conditional, not as fundamental, the epistemic accountability conception shares with will-­based conceptions of political legitimacy their account of how an appropriate response to the political will can support a permission to make binding pol­it­ ical decisions. On what I consider the most plausible version of a will-­based conception, it’s the mutual accountability of citizens who are equally pol­it­ ical­ly authoritative that explains the possibility of legitimate decision-­making. On those will-­based conceptions, mutual accountability is the only ground of political legitimacy: legitimate political decisions are those that the citizens can hold themselves mutually accountable for. On the epistemic accountability conception, mutual accountability is only one ground of political legitimacy, not the only ground. The citizens’ ability to hold themselves accountable to act as directed by a political decision is key whatever the ground of political legitimacy, however. If there is cognitive political authority, then it’s the citizens’ epistemic accountability that explains how they are bound by a political decision that accords with it. But in the absence of cognitive political authority, it’s their own authoritativeness that is

116  The Grounds of Political Legitimacy decisive for what they can hold themselves accountable for. Mutual ac­count­ abil­ity, reflecting the citizens’ equal political authoritativeness, then takes the place of cognitive political authority as a ground of political legitimacy. To shed further light on the conditional normativity of the political will, it is perhaps helpful to return to an idea that I introduced in Chapter 3, as part of my argument against political factualism. I argued that a key function of political legitimacy is to settle political decision-­making. Political legitimacy, unlike some other normative properties, can’t merely orient political decision-­ making. On the epistemic accountability conception, cognitive political authority settles political decision-­making when it’s within reach. In that case, there is decisive epistemic authority on what the right decision is, and that makes it possible to identify the decision that is (likely to be) warranted by the normative facts in the given circumstances. When cognitive political authority is epistemically underdetermined, however, or not applicable because of value underdetermination, then political decision-­making must be settled differently. On the epistemic accountability conception, what assumes this settling function in those circumstances is how political decision-­ making adjudicates between the citizens’ wills—­ reflecting their mutual accountability. In the airport expansion case, for example, we might want to say that a decision is legitimate as long as it’s been made by a democratically elected government, within the limits of its mandate.10 So the political will has an important settling function, given the epi­stem­ic circumstances of politics, and that explains its conditional normativity. It’s worth briefly highlighting here that responding to the political will also has an important further function in legitimate political decision-­making, beyond compensating for the lack of cognitive political authority. Call it the constructive function.11 As I’ll explain in more detail in Chapter 8, the constructive function provides an important check on the limits of cognitive political authority. In expressing their political opinions, citizens might bring new bodies of evidence to bear on political decision-­making, and, on the basis of that, make proposals about what should be considered in political decision-­making that have not previously been considered. In the Flint water crisis that I mentioned in Chapter 1, for example, the citizens’ activism played a key role in the discovery of the problem. The citizens’ contributions might also validly question the robustness of claims about what the evidence shows 10  Alternative interpretations of what it means to appropriately respond to the political will are also possible, for example interpretations involving sortition (Guerrero 2014), or interpretations involving modelling true preferences (Ahlstrom-­Vij 2022). I’ll return to this issue in Chapter 9. 11  This draws on terminology I introduce in Peter (2009), drawing on Sen (1999).

A Hybrid Account Of The Grounds Of Legitimacy  117 should be done (competence condition) and of who should count as an expert on a certain matter (identification condition). In its constructive function, responding to the political will puts epistemic pressure on any purported claims of cognitive political authority that might not be sustainable. Given the fragility of cognitive political authority, legitimate political decision-­making must include mechanisms that allow for the testing of the limits of cognitive political authority—­so both the settling function and the constructive function of responding to the political will are important. Appropriately informing and consulting the public is necessary, not just because the political will is an important ground of political legitimacy, but also because it’s a way in which governments can ensure that cognitive pol­it­ ical authority stays within its appropriate limits. If resistance to political decisions emerges, this can be a symptom of cognitive authority overreaching. When such resistance rightly highlights the limits of cognitive political authority, then this triggers a switch from cognitive political authority to the political will as the relevant ground of political legitimacy. I’ll return to this issue in Chapter 9, when I discuss how political disagreements bear on le­git­ im­ate political decision-­making. In sum, in this chapter I have argued in support of what I call the epistemic accountability conception of political legitimacy. This conception rests on a hybrid account of the grounds of political legitimacy. It holds that that there are two possible grounds of political legitimacy: political decisions may be legitimate because they are appropriately responsive to cognitive political authority or because they appropriately adjudicate between the plurality of valid political claims when there is no cognitive political authority. A key feature of the epistemic accountability conception is that the two grounds of political legitimacy are not normatively on a par. Cognitive political authority takes priority in the sense that a decision that disregards cognitive political authority, when cognitive authority can be established, will not be legitimate. When there is no cognitive political authority, however, then political le­git­im­ acy depends on the way in which political decisions respond to the political will, suitably understood.

PART II

AN E PIST E MIC T H E ORY OF POL IT IC A L J U ST IF ICAT ION

6 Political Deliberation The first part of the book focused on the grounds of legitimate political decision-­making. It remained mostly silent on the first-­order normative question of how political decisions should be made. It’s time to rectify this and show what the epistemic accountability conception of political legitimacy implies for legitimate decision-­making. One key feature of legitimate political decision-­making, I argue in this chapter, is that it is embedded in well-­ordered political deliberation and I explain what I mean by well-­ordered political deliberation. But why think that political legitimacy requires political de­lib­er­ ation, in the first place? I show that this follows from adopting a justificationist view of political legitimacy combined with a) rejecting factualism about political legitimacy (drawing on Chapter 3), and b) taking seriously the epi­stem­ic underdetermination problem for cognitive political authority (drawing on Chapter 4).

6.1  Justificationism about Political Legitimacy According to a justificationist view of political legitimacy, as we saw in Chapter  1, a legitimate political decision is a justified political decision. Consent views, by contrast, hold that political legitimacy derives from the consent of the citizens. Consent views are necessarily will-­based, but justificationist views can be found in factualist, cognitivist, and voluntarist conceptions of legitimacy. My aim in this section is to argue against the consent view and defend the justificationist view of political legitimacy. Later in this chapter, I then use this justificationist view of legitimacy to explain the normative role of political deliberation that follows from the epistemic accountability ­conception of legitimacy.

(a)  The Consent View of Political Legitimacy Why have many thought that political legitimacy derives from consent? Part of the answer lies in the appeal of will-­based conceptions, more broadly. The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0006

122  The Grounds of Political Legitimacy But because there are justificationist and consent views of will-­ based ­conceptions, as we saw in Chapter 2, the full answer to this question does not simply lie in the appeal of will-­based conceptions. Instead, we need to consider the appeal of consent itself. Consent is a transformative moral act. Through the act of consent, a situ­ ation that would otherwise be morally impermissible is transformed into a situation that is morally permissible (Wertheimer 2000). In the context of an invasive medical procedure, for example, your consent is required to make permissible what would otherwise be an impermissible interference with your bodily integrity. Consent plays an important normative role in such contexts, one that I do not intend to dispute. My reservations only concern the political context. The consent view of political legitimacy relies on the transformative moral power of consent. The citizens’ consent, it is argued, gives rise to a permission to make political decisions or to an obligation to obey. The consent view of political legitimacy overlaps to some extent with the core of the political an­arch­ist tradition.1 A priori political anarchists claim that there is an inherent tension between the value of individual autonomy and the collective nature of political decisions (Wolff 1970). They hold that political decisions inevitably encroach on individual autonomy, and that they are necessarily wrongful—­and illegitimate—­for that reason. Defenders of the consent view also hold that the problem of legitimacy arises from the way in which political decisions encroach on individual autonomy. But defenders of this view hold that the citizens’ consent can make it permissible for decision-­makers to decide on behalf of others or to expect obedience. Consent views tend to treat consent as necessary for political legitimacy, but typically not as sufficient. They thus allow that other factors might play a decisive role in the legitimacy of political decisions. For Locke, as we saw, violations of the natural law would be illegitimate. For John Simmons, to give another example of an influential consent view, states must be morally justified (Simmons 2001). A violent state that exploits its citizens for the gains of a few would not be morally justified. But a morally justified state would not be legitimate without the citizens’ consent, according to Simmons. Even states that are in principle morally justified are illegitimate if they impose decisions on dissenting citizens. A state that aims to protect its citizens from adverse living conditions, for example by offering solutions to coordination and 1  Some consent views are explicitly anti-­anarchist, however. Stilz (2019), for example, argues that only the consent of those willing to cooperate with other citizens matters for legitimacy.

Political Deliberation  123 co­oper­ation problems is, in principle, morally justified. For its decisions to be legitimate, however, this is not sufficient. Political decisions are only le­git­im­ ate if they are made by a state that is morally justified and attracts the citizens’ consent.2 It is important to note that the consent view is a normative view. As such, it needs to be distinguished from a Weberian descriptive account of political legitimacy. Both the consent view and a descriptive account of legitimacy refer to what the citizens accept, in a sense, but they do so in very different ways. The consent view holds that the citizens’ consent grants permissions to make political decisions or obligates the citizens to obey—­that’s the transformative power of consent. On a descriptive account, legitimacy captures the actual leeway that political decision-­makers have and the tendency of citizens to obey. What the citizens accept in this sense does not give rise to permissions and obligations. Instead, it describes their beliefs with regard to permissions to make political decisions and with regard to what they should do.3

(b)  The Justificationist View While the consent view has dominated the history of modern political phil­ oso­phy and there are many defenders of this view in contemporary political philosophy, the justificationist view offers an important alternative. According to the justificationist view, legitimate political decisions are justified political decisions. On this view, political legitimacy does not derive from the citizens’ consent. Instead, it derives from the reasons in favour of particular political decisions. So the key claim that justificationist views of political legitimacy are committed to is that political decisions require justification. Both the permission to make a political decision and the obligation to obey depend on the justification for that decision. The justificationist view has become the mainstream view in contemporary political philosophy, I contend, primarily due to some very influential proposals. Versions of the justificationist view can be found in John Rawls’ liberal 2  To clarify, Simmons argues that actual consent is necessary for political legitimacy, but, because it is impossible to secure genuine consent from all citizens, all states are illegitimate. This view is called philosophical anarchism. 3  See Greene (2017) for an opposing view—­Greene argues that the Weberian conception is more normative than is commonly thought. So-­called realist conceptions of political legitimacy, which often build on Williams (2005), also question a sharp distinction between the descriptive and normative concept of legitimacy (e.g. Rossi and Sleat 2014). See also Beetham (1991) for an excellent discussion of this topic.

124  The Grounds of Political Legitimacy principle of legitimacy (Rawls 1993), in Juergen Habermas’ deliberative demo­crat­ic conception (Habermas 1996), and in Joseph Raz’ service conception (Raz 1986), among many others. According to Rawls’ public reason view, as we saw in Chapter 2, political justification depends on reasons that the citizens can share. According to Habermas, the justification of political decisions is the result of a deliberative democratic decision process, where deliberation is understood as an exchange of reasons.4 Finally, according to Raz, the justification of political authority depends on whether its directives allow the citizens to act in accordance with the reasons that apply to them, independently of the political decisions themselves, and also independently of their own assessment of those reasons. Because these are the reasons on which le­git­im­ acy depends, Raz calls them dependent reasons (1986: 41). As these three examples illustrate, justificationist views might draw on very different interpretations of what the relevant reasons are that justify political decisions, and the justificationist view is found in substantive and procedural conceptions of political legitimacy. What all justificationist views share, however, is the view that legitimate political decisions are justified decisions. This means that the decisions are supported by reasons, whether they are substantive reasons or procedural reasons. As with the consent view, the relevant claim is typically taken to be a necessity claim. Justification is necessary for political legitimacy, but it might not be sufficient. Raz (1986), for example, stresses that only de facto authorities can be legitimate, and this implies that justification is not sufficient for legitimate political decisions. The political decisions must also be made by a political body with a de facto permission to make that decision. Rawls’ liberal principle of political legitimacy (1993), similarly, targets the justification of constitutionally embedded political decision-­making. So not all decision-­making based on shared reasons will be legitimate. Decisions are only legitimate if they are made in conformity with a political constitution that is justified on the basis of those reasons.5

(c)  Against Consent Why favour a justificationist view over a consent view? Before I discuss my main reasons for rejecting the consent view, a point of clarification is 4  See also Chambers (1996) and Forst (2014) for helpful discussions. 5  See Marmor (2011) for a helpful discussion of the institutional prerequisites.

Political Deliberation  125 im­port­ant. On my understanding, the consent view is limited to actual consent. Actual consent might be tacit rather than express, but actual consent is the transformative moral act that is at the core of a consent view, not just in the political context. Hypothetical consent views, by contrast, emphasize the ­reasons for certain actions or decisions that citizens have, not the transformative moral act as such. Hypothetical consent is the consent that a citizen who reasons well would give. A normative consent view takes this idea one step further, to highlight that in some cases, citizens who reason well would do something wrong if they didn’t consent. So normative consent, which is a kind of hypothetical consent, is the consent that a citizen who reasons well should give.6 Because hypothetical and normative consent views focus on the reasons that citizens have to support political decisions, they are better interpreted as versions of justificationism. Cynthia Stark (2000: 333) makes a related point, when she argues that hypothetical consent views are not a substitute for actual consent views. Because they rely on the normative force of reasons, rather than the transformative act of consent, she argues that hypothetical consent views offer a “nonvoluntaristic,” or justificationist, alternative to actual consent views. Focusing, then, on actual consent, a first problem arises because legitimacy through actual consent is unobtainable in the normal circumstances of pol­it­ ics, as others have argued as well (see Simmons 2001). Citizens typically hold different opinions on most political issues, and their disagreements make it unlikely that any one political decision can be legitimized by universal consent. However, while philosophers such as Simmons and others have made use of the difficulty with achieving universal consent as part of an argument for an anarchist position, I think this difficulty is part of an argument for abandoning the consent view.7 The reason is the following “ought implies can” problem. If a standard can’t be met, it’s not a good guide for political decision-­ making, and if a standard can’t serve as a guide for political decision-­making, it is unsuitable in the context of a conception of political legitimacy. As I’ve already argued in Chapter 3, we should expect a plausible conception of pol­it­ ical legitimacy to help us settle the permission to make binding decisions. The

6  Rawls’ public reason conception of political legitimacy (Rawls 1993) is a good example of a hypothetical consent view. Estlund’s epistemic proceduralist conception rests on normative consent (Estlund 2008). 7  Buchanan (2002) argues along similar lines.

126  The Grounds of Political Legitimacy unobtainability of actual consent is thus at the heart of a first objection against that view of political legitimacy. A second, and I think weightier, objection against consent views focuses on the normative force of actual consent, even if it were obtainable. That objection echoes some points I made earlier, in the context of my discussion of a factualist conception of political legitimacy in Chapter 3. The objection holds that actual consent, even if it were obtainable, is not necessary for political legitimacy and lack of actual consent doesn’t undermine an otherwise le­git­ im­ate decision. While actual consent has considerable normative force in individual contexts, its normative force in the political context is outweighed by other normative considerations. In the individual context, we’re considering how an action affects a particular individual. This makes their consent normatively forceful. In the political context, however, we’re considering decisions that have the potential to greatly impact on the lives and livelihoods of many. The example I gave in Chapter 3 was the management of climate change. Relative to what’s at stake in the political context, the actual consent of any one individual has much less normative force. What becomes much more normatively significant in this context is how a political decision responds to the citizens’ reasons to coordinate and cooperate with others to solve pressing political problems. A failure to consent to a decision that is justified on the basis of reasons to cooperate and to coordinate will not undermine the legitimacy of that decision. Echoing the arbitrariness objection against all will-­based conceptions, we can say that the consent view of political legitimacy rests on a distorted and inflated sense of the citizens’ political authoritativeness. To be clear, by adopting a justificationist view of political legitimacy, and not a consent view, I do not mean to suggest that political dissent is irrelevant for political legitimacy. Quite to the contrary: a proper understanding of political legitimacy must be sensitive to the possibility of dissent. Dissent is pervasive and often has the potential to delegitimate political decisions. Consider the Black Lives Matter protest wave, for example, and the impact it had on delegitimizing the police on account of its treatment of black people. But we should distinguish between dissent that is delegitimating qua political act—­by withholding authorization—­and dissent that is delegitimating qua undermining the justification of political decisions—­by offering defeating reasons. By rejecting the consent view, I reject the former but not the latter. The justificationist view of political legitimacy can accommodate this role of dissent.

Political Deliberation  127

(d)  Justificationism Defended In the rest of this chapter, my main focus is on how the epistemic ac­count­abil­ity conception interprets the justificationist view of political legitimacy. But before I get to that, it will be helpful to consider an important objection to justificationism. This objection, which has been raised in different ways, states that a justificationist view of political legitimacy falls short because the justification of a political decision does not entail that this decision is binding for the citizens. An important version of the objection can be found in Ronald Dworkin’s (1975) discussion of Rawls’ theory of justice, where he argues that hypothetical agreements of the sort envisaged by Rawls in the original pos­ ition do not bind; only actual agreements bind. Simmons’ distinction between legitimacy and justification (Simmons 2001) that I introduced earlier develops the objection in the context of political legitimacy, holding that while states require moral justification, only political decisions that are supported by the citizens’ consent are binding for them. The objection can be extended to all justificationist will-­based conceptions of political legitimacy that involve hypothetical or normative consent. We considered another version of this objection in Chapter  4: Darwall’s standing objection to Raz’ service conception. That version of the objection targets a belief-­based conception of legitimacy, not a will-­based conception. If you recall, Darwall argues that the service conception fails because epistemic authority doesn’t imply legitimate practical authority—­an epistemic authority might give you well-­justified advice, but it doesn’t have the standing to hold you accountable. Translated into the political context, the objection holds that a political decision might reflect what an epistemic authority would recommend, but the decision will not be legitimate because it won’t be binding for the citizens. There are two ways in which this objection might be answered. The first answer, which is the one we already considered in the context of Raz’ reply to Darwall in Chapter 4, is that the justification of political decisions might involve normative reasons that have binding force quite independently of the citizens’ actual attitudes.8 The thought here is that, as it is generally recognized for moral obligations, we can be bound to act in certain ways whether we like it or not. And if political decisions are justified on the basis of those reasons, then their bindingness is accounted for, even within a justificationist view. 8  Stark (2000) also argues along those lines in favour of what I call the justificationist view.

128  The Grounds of Political Legitimacy The second answer, which is the one favoured by Rawls and other ­hypothetical or normative consent theorists, as well as by Darwall, is that the justification of political decisions can account for their bindingness as long as the justification involves normative reasons that the citizens can recognize as binding. While staying clear of an actual consent view, this sort of answer seeks to reconcile a justificationist view with what’s considered plausible in consent views—­that political decisions shouldn’t be imposed on disagreeing citizens, and that political decisions can’t be binding unless the citizens can consider themselves bound. The epistemic accountability conception of political legitimacy makes some use of both answers. Following Darwall, I accept that the citizens’ accountability is part of what explains how citizens are bound by certain political decisions (see Chapter  4). In addition, again following Darwall, I accept that mutual accountability can be a relevant ground for binding ­pol­it­ical decisions (see Chapters 2 and 5). But, contra Darwall, I argue (again in Chapter  4) that it’s not the case that the citizens can only be bound by political decisions that are justified on the basis of their own political judgments, given their doxastic state, as will-­based conceptions claim. Citizens can be bound by political decisions that are made on the basis of cognitive political authority, and their epistemic accountability explains why such decisions might be binding.9 The epistemic accountability conception of political legitimacy, while it is a justificationist conception, can explain the bindingness of pol­it­ical decisions without relying on actual consent.

6.2  Political Justification and Political Deliberation A justificationist view of political legitimacy helps to explain why political deliberation plays an important normative role: political deliberation is essential for legitimate political decision-­making because it is involved in the justification of political decisions. We have to be careful not to move too quickly here, however, as not all justificationist views require deliberative decision-­making. So my aim in this section is to explain how the epistemic accountability conception construes the link between political legitimacy and political deliberation.

9  I develop this point in Chapter 8.

Political Deliberation  129

(a)  Political Deliberation and Its Roles Political deliberation, characterized very broadly, is a process of reasoning about what political decision should be made. It’s a multi-­stranded process that critically scrutinizes political decisions—­past, present, and future—­and that underpins holding political decision-­makers to account (Parkinson and Mansbridge 2012). It involves both the kind of deliberation that individual citizens might engage in, including citizens holding political office, and the process of collective deliberation, in which citizens respond to claims made by others in an exchange of reasons for or against particular political decisions—­past, present, and future.10 The way in which political decision-­making is embedded in political de­lib­ er­ation matters for legitimacy in two senses. On the one hand, political de­lib­ er­ation influences whether citizens accept or reject political decisions. As such, it plays an important role for legitimacy in the descriptive sense (see Section  6.1). Achieving descriptive political legitimacy is important, as no government will be able to govern well if the majority of the citizens tend to consider its decisions de facto illegitimate. Because political deliberation influences what the citizens accept or reject, it is an important target of political propaganda and of political conspiracy theories. Contributions to political deliberation are propaganda if they portray a distorted picture of the reasons for and against certain political decisions, for example by spreading misinformation or disinformation (Stanley 2016; Benkler et al. 2018). Propaganda may be intentional, but it need not be. Conspiracy theories are contributions to political deliberation that aim to show how commonly accepted political beliefs are false and, typically, upheld by the political elite to mask the truth about political events. Conspiracy the­ or­ies have distinctive features, but they are often a form of propaganda (Cassam 2019). Political deliberation also plays an important normative role. In its normative role, political deliberation contributes to settling whether citizens should accept or reject certain political decisions. It is a vehicle for scrutinizing any existing justifications for political decisions and for developing better justifications. This normative role of political deliberation has been recognized and studied extensively in political philosophy, especially in the literature on deliberative democracy. 10  Goodin (2003) argues that the former—­individual deliberation—­has been overlooked by the­or­ies of deliberative democracy. Gaus (2011a) develops the idea.

130  The Grounds of Political Legitimacy Classic deliberative democrats (e.g. Gutman and Thompson 1996; Bohman 1996; Dryzek 2002; Richardson 2002) argue that the legitimacy of democracy stems from a process of democratic deliberation in which citizens exchange reasons for and against particular political decisions, with a view to, ideally, reaching a shared conclusion on the decisions that should be made. Here’s how Amy Gutman and Dennis Thomson (2004: 7) describe the normative role of political deliberation: we can define deliberative democracy as a form of government in which free and equal citizens (and their representatives), justify decisions in a process in which they give one another reasons that are mutually acceptable and generally accessible, with the aim of reaching conclusions that are binding in the present on all citizens but open to challenge in the future.

On this voluntarist account of the justificatory role of political deliberation, participants exchange mutually acceptable reasons for and against political decisions with a view to identify a political decision that is justified on the basis of an agreement. Many epistemic democrats also recognize the normative role of political deliberation. But epistemic democrats typically defend democratic de­lib­er­ ation on cognitivist grounds, not on voluntarist grounds (e.g. Misak 2000; Talisse 2009; Landemore 2013; Schwartzberg 2015; Goodin and Spiekermann 2019). Here’s how Cheryl Misak describes the justificatory role of political deliberation from a cognitivist perspective (Misak 2004: 11): A legitimate procedure must be answerable to reasons—­it must pay attention to the reasons that matter. . . . Since reasons come to light primarily in debate and deliberation, a legitimate procedure must proceed by debate and deliberation.11

On this cognitivist account, political justification requires political de­lib­er­ ation because it is through inclusive deliberation that we discover and assess relevant justificatory reasons and that we can thus improve our beliefs about what the right political decision is in a given situation.

11  This description isn’t of Misak’s own theory of democratic deliberation—­it’s how she describes the core commitment of the epistemic view. Misak’s own pragmatist theory, which builds on the work of Charles Pierce, argues that engaging in deliberation—­in an exchange of reasons—­is a commitment incurred with believing.

Political Deliberation  131 Voluntarist and cognitivist accounts of the normative role of political de­ lib­ er­ ation differ with regard to how they understand the relationship between deliberation and justification—­is deliberation a process for reaching agreement or a process of discovery? But on both accounts, political deliberation is a forum for the collective scrutiny of reasons in favour of different political decisions with the aim of reaching a justified political decision.12 The epi­stem­ic accountability conception of political legitimacy, as I’ll explain in a moment, also recognizes this normative role of political deliberation, and it does so on both cognitivist and voluntarist grounds.

(b)  Why Political Legitimacy Requires Political Deliberation We can explain the normative role of collective political deliberation on the basis of a justificationist view of political legitimacy. On a justificationist view, as we saw, a legitimate political decision is a justified decision. And the claim that deliberative democrats make, and that I develop further below, is that collective political deliberation plays an essential role in the justification of political decisions because it is the forum in which citizens scrutinize reasons for and against particular political decisions. A consent view might also recognize some value in political deliberation. And that’s because political de­lib­ er­ation, if it functions well, can enable the informed consent of the citizens. But it’s the consent of the citizens, not the reasons selected by a deliberative process, that underpins the legitimacy of political decisions on the consent view. On a justificationist view of political legitimacy, by contrast, political legitimacy depends on reasons that justify political decisions and justificationism can thus make room for a deeper normative role of political deliberation. We have to be careful not move too quickly, however, as not all justificationist views require collective political deliberation. Factualist conceptions of political legitimacy, to start with, even though they are justificationist, do not assign a special normative role to collective political deliberation. Given a justificationist view of political legitimacy, we can characterize factualism as holding that the justification of political decisions depends on normative ­reasons that apply independently of the citizens’ own assessment of what should be done. If factualism were true, political justification would be 12  Borrowing terminology from Talisse (2007), we can call this view deliberativism about political justification.

132  The Grounds of Political Legitimacy concerned with whether political decisions are warranted by fact-­given normative reasons, not with what citizens believe or otherwise take to be justified. This explains why political justification, on fact-­based conceptions, is not deliberation-­dependent. Political deliberation might be helpful in identifying fact-­given reasons, but it’s those reasons directly that are the ground of pol­it­ ical legitimacy. Factualism about political legitimacy should be rejected, I have argued in Chapter 3. And if we reject factualism, it follows that the justification of pol­it­ ical decisions does not (just) rest on normative facts and instead rests on considerations that are accessible in deliberation. The rejection of factualism about political legitimacy, which was part of my argument for the epistemic accountability conception of political legitimacy, is thus also an argument for a normative role for political deliberation. But note that it’s not just factualist conceptions of political legitimacy that reject a normative role for collective political deliberation. Some cognitivist conceptions also do not support such a role. If the epistemic circumstances of politics were such that it would be possible to establish cognitive political authority without collective political deliberation, it would follow that deference, not political deliberation, would be what’s required of the citizens. In those circumstances, using the terminology I developed in Chapter  4, the capacity to make binding political decisions depends on whether the decision-­ maker holds cognitive political authority. It doesn’t depend on whether the citizens agree or disagree with particular political decisions. Not only would there be no need for the citizens to be involved in collective deliberation about political decisions; inclusive political deliberation might even be detrimental to political legitimacy. It risks creating a tension between what the citizens think they have reason to do and what the authority legitimately asks them to do. Instead, Raz has argued, citizens should set aside their own de­lib­ er­ations about political decisions and defer to those with cognitive political authority. In Chapter 4, I objected to this sort of exclusive belief-­based conception by contending that the normal epistemic circumstances of politics are not favourable to establishing cognitive political authority in this way. Deference is thus not the standard response that’s required of the citizens.13 In recognition of this, the epistemic accountability conception assigns a more extensive role to inclusive political deliberation in the justification of political decisions.

13  In Chapter 8, I discuss the circumstances in which political deference might be required.

Political Deliberation  133 To sum up the argument so far, I’ve shown that on the epistemic ­ac­count­abil­ity conception, legitimate political decision-­making is embedded in pol­it­ical deliberation. This follows from a justificationist view of legitimacy, combined with the rejection of factualism about political legitimacy, which implies that political justification must be accessible in judgment, and the epistemic underdetermination objection against an exclusive belief-­based conception, which implies that deference isn’t the default response to political authority that is required from the citizens.

(c)  The Justificatory Role of Political Deliberation Above, I pointed out that deliberative democrats have interpreted the normative role of political deliberation on either cognitivist or voluntarist grounds. The epistemic accountability conception offers a fresh take on the significance of political deliberation for political legitimacy because it implies that political justification has cognitivist as well as voluntarist dimensions. My aim in the rest of this book is to develop this hybrid account of the justificatory role of political deliberation and clarify how it supports legitimate political decision-­making. To start, let me give an overview of how the hybrid account combines the cognitivist and voluntarist elements. To recap, on the voluntarist account, the normative role of political deliberation is to facilitate reaching an agreement on what political decision should be made. On the cognitivist account, by contrast, the primary normative role of deliberation is not to reach agreement. Instead, it is to discover which political decision is best supported by the normative reasons that apply in a given situation. The hybrid account of the justificatory role of political deliberation initially has more in common with the cognitivist account. That shouldn’t be surprising, given that the epi­ stem­ic accountability conception of political legitimacy assigns normative priority to cognitive political authority over the political will. Borrowing from Chapter 1, we can say that on the cognitivist account, the justificatory role of political deliberation relates to identifying the evidence-­ relative ought. Generally speaking, the evidence-­relative ought picks out the action or decision that the available evidence implies is warranted by the normative reasons that apply in given circumstances. If the permission to make binding political decisions depends on the evidence-­relative ought, the legitimate decision is the one that the available evidence implies is what there is most reason to do. To track the evidence-­relative ought, political de­lib­er­ation is understood as a process of critical scrutiny of the empirical and normative

134  The Grounds of Political Legitimacy claims that citizens, including political leaders, make in political deliberation, with the aim of identifying the political decision that is best supported by the normative reasons that apply in a given situation. To track what the available evidence implies for decisions regarding climate change policies, health care reform, or gun control, political deliberation needs to scrutinize available empirical evidence about the background conditions and the possible effects of any proposed legislation as well as examine the weight of reasons for and against different proposals. Without the former, it’s impossible to identify the reasons that apply in the circumstances, and without the latter, it’s impossible to justify any decision. The hybrid account of the normative role of political deliberation that follows from the epistemic accountability conception shares with the cognitivist account this commitment to tracking the evidence-­relative ought. And that means that, on the hybrid account, political deliberation is, in the first instance, a process aimed at scrutinizing relevant empirical and normative claims and at identifying the political decision that is best supported by the normative reasons that apply in a given situation. In sufficiently favourable epistemic circumstances, well-­conducted deliberation will be able establish that there is a uniquely justified decision in this situation. However, because the epistemic circumstances of politics are often un­favour­able, we shouldn’t expect deliberation to normally converge on a uniquely justified political decision. What is much more common, is that even political deliberation that functions well fails to identify a uniquely justified political decision and instead establishes that there is a plurality of well-­ justified but conflicting claims. As I put the point in Chapter  4, and as I’ll spend a lot of time arguing in the rest of this book, the evidence-­relative ought will often remain epistemically underdetermined. Political deliberation will then uncover a range of valid empirical and normative claims that support conflicting political decisions. In those epistemic circumstances, political de­lib­er­ation will not be able to resolve political disagreements that are the result of well-­supported, but conflicting interpretations of what the evidence-­ relative ought entails in a given situation. The ground of political legitimacy can’t then be cognitive political authority. Instead, as I argue in Chapter 5, the legitimacy of any political decision then depends on how it responds to the mutual accountability among the citizens. Given that unfavourable epistemic circumstances are fairly common, an important part of the justificatory role of political deliberation is to establish what the range of normatively significant political disagreements is to which legitimate political decision-­making must respond. The voluntarist normative

Political Deliberation  135 role of political deliberation, which is a secondary normative aim of political deliberation, is thus to identify through inclusive political deliberation which political decisions require settling on the basis of mutual accountability, rather than on the basis of cognitive political authority. To sum up, in this section I’ve argued that political deliberation plays an import justificatory role, and that political justification has to serve both cognitivist and voluntarist aims. In the next section, I further develop this account by focusing on the conditions under which political deliberation can fulfil its justificatory role and is thus legitimacy-­conferring. I call political deliberation that is legitimacy-­conferring well ordered.

6.3  Well-­Ordered Political Deliberation Anyone who follows contemporary political debates is likely to despair at times. Actual political deliberation is often not well ordered, to say the least. Online forums of political debate, in particular, are often awash with misinformation and disinformation, there is online harassment and bullying, and there is little patience for nuanced argument. If deliberation isn’t well ordered, however, it not only fails to fulfil its justificatory role, it may even undermine legitimate political decision-­making.14 But what would well-­ordered political deliberation look like? Under what conditions is political deliberation legitimacy-­conferring? In this section, I characterize well-­ordered political deliberation as deliberation that satisfies appropriate norms of deliberation.

(a)  What Are Valid Contributions to Political Deliberation? In the previous section, I described political deliberation as a process that scrutinizes empirical and normative claims related to political decision-­ making. To further develop this account of the normative role of political deliberation, we need a framework that allows us to identify which contributions might bear on the justification of political decisions. A contribution to

14  To be clear, while I’m focusing here on the justificatory role of political deliberation, political debate in a healthy democracy involves a broad range of contributions, including acts of civil dis­ obedi­ence. Expressions of anger, for example, might help draw attention to certain political problems; see Srinivasan (2018) and Cherry (2021) on this. Sanders (1997) has an excellent discussion of the risks of excluding important perspectives if well-­ordered political deliberation is understood too narrowly.

136  The Grounds of Political Legitimacy political deliberation makes a claim about what should be done in a given situ­ation that rests on certain normative and empirical premises. A valid contribution is one that has the potential to add to the justification of a particular political decision, or to undermine an existing justification. Contributions that are not valid do not have this justificatory impact—­they can be ignored in political deliberation, and perhaps they should even actively be discouraged or even blocked, if they have the potential to derail well-­ordered political deliberation. Political deliberation that responds adequately to all valid contributions is legitimacy-­conferring because it facilitates the justification of political decisions. And it is legitimacy-­conferring either because it identifies a uniquely justified political decision or because it prepares the ground for justification on the basis of mutual accountability among the citizens. I interpret valid contributions to political deliberation as those that satisfy appropriate norms of political deliberation, and this section focuses on the question of what norms political deliberation should be subject to.15 Political deliberation that satisfies appropriate norms is well ordered. Well-­ordered deliberation is pushed forward by and adequately responds to all valid contributions. Deliberation that is not well ordered ignores valid contributions. It fails to register that there are political decisions that are potentially justified, or that a political decision that is being considered lacks justification. To illustrate the main idea, think of political deliberation preceding a run for political office. If deliberation is well ordered, it engages with all considerations that bear on whether particular candidates are electable and on who is best suited for this political office. Someone might claim that a candidate should be elected because they have an excellent track record of achievements. Someone else might disagree, pointing out a failure to deliver. Yet someone else might claim that a different candidate should be elected because of their greater ability to give voice to underrepresented groups. Well-­ordered political deliberation identifies which of these claims are valid and weighs them up, aiming either for a uniquely justified choice (unlikely in the case of an election for parliament or similar) or for a set of candidates that should run for election. If the deliberation is not well ordered, by contrast, candidates are being promoted for office despite well-­justified concerns about their suitability for office, and despite there being alterative candidates that do not raise such concerns.

15  Practical reasoning outside of a political context—­say in the context of your own reasoning about what you should do—­may be subject to different norms, but I won’t say much about norms of practical reasoning in other contexts.

Political Deliberation  137 What are the norms that define well-­ordered political deliberation? Or, to put the same question differently, what counts as a valid contribution to pol­it­ ical deliberation? These are the questions I intend to answer in the rest of this chapter and the next.

(b)  Norms of Political Deliberation What makes the norms framework particularly helpful is that it allows us to do justice to both the cognitivist and the voluntarist dimensions of political deliberation. As we’ll see, some norms focus on cognitivist criteria of validity while others capture voluntarist criteria. Norms of political deliberation can be quite generally characterized as follows. A norm N applies to contributions to political deliberation c, by a member of the public or a group A in a particular context x. A contribution c is a claim about what should be done in a particular context. Such contributions rest on a set of premises pi. Relevant premises will be both empirical and normative, and while some will be explicit, others will be implicit. Contributions c(p1, . . . , pn) that respect the norms of political deliberation are valid. Contributions that fail to respect relevant norms are not valid. Focusing on just one norm for the time being, if a norm N is the criterion for validity that a norm specifies, here’s the general form of a norm of political deliberation, which might be a necessity condition or a sufficiency condition (or both): Norm of political deliberation:  everything else equal, A’s contribution c(p1, . . . , pn) to political deliberation in context x is valid if / only if N. The everything else equal clause at the beginning highlights that more than one norm might apply in determining the overall validity of a contribution. I’ll have a lot more to say about the relationships between different norms later. The explanation of why context matters is also best deferred until later. Different norms of political deliberation complete the N clause in different ways, capturing different criteria of validity. If a contribution satisfies all relevant norms of political deliberation, then that contribution is valid. And if political deliberation is well ordered, it engages with valid contributions and doesn’t get side-­tracked by contributions that are invalid. In what follows, I discuss three main types of norms of political de­lib­er­ ation: participation norms, practical reasoning norms, and epistemic norms.

138  The Grounds of Political Legitimacy Participation norms are important because they capture the voluntarist dimension of well-­ordered political deliberation. Epistemic norms capture the cognitivist dimension. And norms of practical reasoning, as we’ll see, provide a bridge between the two. Together, these norms characterize how the epistemic accountability conception construes well-­ordered political de­lib­er­ ation. On that conception, well-­ordered political deliberation is accessible to all citizens (voluntarist element) and satisfies a norm of practical reasoning that is sensitive to the epistemic status of political beliefs (cognitivist ­elem­ent). In favourable epistemic circumstances, well-­ordered political de­lib­ er­ation identifies a uniquely justified political decision. If the epistemic ­circumstances are not favourable, it identifies a range of potentially justified political decisions between which legitimate decision-­making needs to adjudicate. These three types of norms that govern well-­ordered political deliberation can be very generally characterized as follows: Participation norm:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if A has standing. Practical reasoning norm:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if c(p1, . . ., pn) is a result of good practical reasoning. Epistemic norm:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if beliefs in p1, . . ., pn have a certain epistemic status. Each type of norm is open to a range of different interpretations, but it gives us a good basis for discussing the different constraints they set on well-­ ordered political deliberation. I discuss the first two in this chapter and epi­ stem­ic norms in the next chapter.

(c)  Participation Norms Let’s start by considering what I call participation norms, which have been highlighted in the literature on classic deliberative democracy. They rest on the political will as the ground of political legitimacy and support the voluntarist aim of reaching a mutually acceptable agreement.16 A contribution to 16  On participation norms, see Baynes (1992), Bohman (1996), and Gutman and Thomson (1996), among others.

Political Deliberation  139 political deliberation is valid, according to norms of this kind, if, or perhaps only if, the participant making the contribution has standing to contribute. The emphasis on standing to contribute to political deliberation is usually thought to capture the citizens’ political equality, their political freedom, or their mutual accountability. And the group of people with standing is typ­ic­ al­ly defined as the group of citizens above a certain age, perhaps with some further qualifications. A good example of a participation norm is a free speech norm. A strong free speech norm might hold that contributions to political deliberation made by someone with standing are valid, even if the content is considered objectionable by others. If such a norm was applicable to well-­ordered political deliberation, it would rule against blocking offensive contributions from ­citizens.17 Other, perhaps even more important participation norms focus on the equality of the citizens and their mutual accountability. They aim to secure social inclusion in political deliberation. A good example is a norm of equal respect, or of mutual recognition. It holds that all contributions made by the citizens are valid as long as they are respectful of the validity of the contributions made by other citizens.18 Freedom of speech norms and egalitarian norms can both be understood positively or negatively.19 A negative free speech norm puts the emphasis on non-­discrimination in relation to the content of the contributions to political deliberation. A negative equal respect norm puts the emphasis on non-­ discrimination in relation to the person or group contributing. The positive versions of those two participation norms put the emphasis on having all viewpoints and all persons or groups with standing heard in political de­lib­er­ ation. The positive versions are thus more demanding. Participation norms are necessary for legitimacy-­conferring political de­lib­ er­ation as they secure inclusion of all viewpoints and of all persons or groups with standing.20 I expand further on their importance for political legitimacy in Chapters 8 and 9, when I talk about the significance of respecting what I  call normatively significant political disagreements in legitimate political

17  Heinze (2017), for example, argues that a strong free speech norm is essential for democratic legitimacy, but that’s probably a minority view. Greene and Simpson (2017) have a helpful review of Heinze’s book. On the limits of free speech, see Schauer (1982). 18  Larmore (2008) advocates a norm of equal respect. 19  See Berlin (1969) on the distinction between negative and positive freedom. My point here is that participation norms other than those capturing political freedom can also be understood positively or negatively. 20 Young (2002) argues that deliberative democrats have not taken inclusion as seriously as they should.

140  The Grounds of Political Legitimacy decision-­making. But participation norms, while essential to ensure a demo­crat­ic political culture, are not sufficient for well-­ordered political deliberation. There are plenty of examples to illustrate the insufficiency of participation norms. One example is the anti-­science populism that has emerged in the UK in the context of the Brexit referendum. Even if political deliberation that caters to such sentiments were to satisfy relevant participation norms, we should still be concerned about its legitimacy-­conferring power. Political deliberation that disregards available evidence and expertise concerning the empirical and normative facts that bear on political decision-­making is likely to end up supporting political decisions that are not justified. You might recognize that the point I’m making here is an echo of the arbitrariness objection I raised earlier against will-­based conceptions of political legitimacy (Chapter 2), and of my argument from epistemic accountability in support of belief-­based conceptions (Chapters 4 and 5). It follows from the epistemic accountability conception of political legitimacy that standing is not sufficient for the validity of a contribution, and it need not even be necessary. In well-­ordered political deliberation, contributions to political de­lib­er­ ation must also be supported by good reasoning and be tethered to evidence and expertise in relation to relevant empirical and normative facts. The epi­ stem­ic accountability conception of political legitimacy thus helps us to see that norms of practical reasoning and epistemic norms also play a role in determining the validity of contributions to well-­ordered political deliberation. Someone might object here that although the justificatory problem that I’m highlighting is real, ensuring that the appropriate participation norms are met is sufficient to ensure that democratic deliberation identifies the right decisions. Inclusive democratic deliberation may even be more likely to track the right decisions than expert-­ led political decision-­ making. As we saw in Chapter  4, Landemore’s (2013, 2020) conception of epistemic deliberative democracy, in particular, gives rise to some optimism in this regard.21 But, as we also saw (in Chapter  4), the numbers-­trump-­ability theorem (NTA) on which her account of the normative role of political deliberation builds only holds in some epistemic environments and not in others. If we can’t rely on the NTA to ensure that political deliberation secures cognitive political authority, then we must take a different approach to the legitimacy-­conferring power of political deliberation, one which includes other norms besides participation norms. 21  See also the discussion in Goodin and Spiekermann (2019: ch. 9) of the impacts of inclusive political participation on the likelihood of making correct political decisions from a Condorcet jury theorem (CJT) perspective. Their results are mixed.

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(d)  Practical Reasoning Norms One avenue that political philosophers have explored is supplementing participation norms with norms of practical reasoning. As we saw above, the general form of norms of practical reasoning can be stated as follows: Practical reasoning norm:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if c(p1, . . ., pn) is a result of good practical reasoning. As with participation norms, the everything else equal clause flags that prac­ tical reasoning norms need not be the only norms that define well-­ordered political deliberation. And I’ve also left it open whether satisfying a practical reasoning norm is a necessary or a sufficient condition for validity, everything else equal.22 Different practical reasoning norms flesh out the “good practical reasoning” clause in different ways. According to a Rawlsian reasonableness norm (Rawls 1993), loosely speaking, good practical reasoning in the context of political deliberation is based on empirical and normative premises that ­others can accept as well.23 Gaus, by contrast, defines good practical reasoning in relation to individual deliberation about relevant premises and the conclusions they support (Gaus 2011a: 250). In addition, norms of practical reasoning will include norms of inference, for example a norm that says that contributions are only valid if they respect the force of the better argument (Habermas 1996). Building on this, I understand a practical reasoning norm as a norm that sets a normative expectation that contributions to political deliberation—­ claims about what should be done—­are supported by good argument. Like participation norms, norms of practical reasoning are also necessary for well-­ordered political deliberation, I agree. But norms of practical reasoning, if added to participation norms, are still not sufficient for legitimacy-­ conferring political deliberation as long as they remain purely practical.24 22  For the time being, I leave this norm as a black box, as details would only be distracting. In Chapter 9, however, when I discuss political disagreements, I return to this norm and offer a particular interpretation. 23  Many discussions of Rawls’ theory of public reason focus on normative claims. But as the list of burdens of judgment makes clear, disagreements on empirical claims are also likely to be expected, even among well-­intended citizens who try to reason well. 24  I should add that Gaus recognizes that epistemic norms apply to individual deliberation (see Gaus 2011a: 244ff.), but the overall account of good reasoning that he develops in The Order of Public Reason places the emphasis on individual consistency in practical reasoning, rather than on (first-­ order or higher-­order) evidential constraints.

142  The Grounds of Political Legitimacy Good practical reasoning also depends on the epistemic status of belief in the premises on which a contribution draws. Political deliberation and legitimate political decision-­making suffer if political debate is flooded with false claims such as that injecting bleach could treat Covid-­19, for example, or that Brexit would free up investment capacity for the UK’s National Health Service. To safeguard against this, it’s not enough that political deliberation responds to sound arguments for or against particular political proposals, nor that we seek agreement with others. To secure our epistemic accountability, political deliberation must also question our doxastic starting-­points. And this means that well-­ordered political deliberation must satisfy some epistemic norms. Epistemic norms have been less frequently discussed, and our understanding of these norms is not as well advanced as our understanding of participation norms or of norms of practical reasoning.25 But because they play a very important role in the epistemic accountability conception of political le­git­im­ acy, I dedicate a separate chapter to them.

25  But see Cohen (1986), Bohman (1996), Estlund (2008), Peter (2009), Talisse (2009), Landemore (2013), and Chambers (2017), among others, for discussions of the epistemic dimension of the theory of deliberative democracy.

7 Epistemic Norms of Political Deliberation The epistemic accountability conception highlights that epistemic con­sid­er­ ations matter for political legitimacy. The validity of contributions to political deliberation thus doesn’t just depend on whether someone has standing to contribute and whether they satisfy purely practical norms of good reasoning. It also depends on the epistemic status of those contributions. This means that well-­ordered political deliberation is subject to some epistemic norms. In this chapter, I first introduce the general idea. I then discuss candidate epi­ stem­ic norms. I argue that political deliberation shouldn’t be subject to a truth norm or a knowledge norm. But it should be subject to a justified belief norm. I also discuss procedural epistemic norms: a responsiveness norm and an epistemic justice norm.

7.1  Epistemic Accountability in Political Deliberation Before I introduce what I take to be the main epistemic norms that govern well-­ordered political deliberation, it will be helpful to say a bit more about how epistemic norms intertwine with practical reasoning norms.

(a)  What Do Epistemic Norms Govern? Epistemic norms apply to political beliefs. Political deliberation is shaped by political beliefs—­beliefs in the premises on which contributions to political deliberation rely. Belief in the inadequacy of the minimum wage as a living wage, for example, together with a belief about the importance of reducing poverty, might lead someone to support a policy proposal to increase the minimum wage. Vice versa, belief in adverse incentives effects of a higher minimum wage might lead someone to argue that a higher minimum wage is undesirable because it leads to more unemployment. The content of those beliefs is given by certain propositions, for example, the proposition that the minimum wage is below a living wage, the proposition that the level of The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0007

144  The Grounds of Political Legitimacy poverty is unjust, or the proposition that wages have incentive effects. Such propositions constitute the content of the political beliefs on which individual and collective political deliberation is based. As the minimum wage example also illustrates, politically relevant prem­ ises can be either empirical or normative. That is to say, political beliefs can involve both empirical and normative propositions. To further illustrate the empirical and normative content of political beliefs, consider deliberation about health care reform. Suppose some citizens believe that the current sys­ tem fails to improve the health status of the poor. That belief concerns an empirical premise that will guide their political deliberation. And suppose they also believe that improving the health status of the poor is an important social duty. That belief concerns a normative premise of their contribution to political deliberation. The beliefs on which political deliberation is based might be warranted or not and the epistemic norms that govern political deliberation determine the kind of warrant that is required for contributions to political deliberation to qualify as valid. Valid contributions to political deliberation are based on political beliefs that are warranted, everything else equal. Here’s a case to illustrate how the validity of a contribution to political deliberation might depend on the epistemic status of the political beliefs on which the contribution rests. After Biden took office, there were repeated claims that Trump continues to be the legitimate president because Biden stole the election. That claim is based on empirical premises concerning how the 2020 presidential election was run, as well as on normative premises about how a legitimate election should be run. Given that there have been numer­ ous court cases, all showing that there is no evidence for the empirical claim, it seems that the political belief that Trump continues to be the legitimate president is not warranted. Everything else equal, this undermines the valid­ ity of this kind of contribution.

(b)  Why Do Epistemic Norms Apply? Someone might object that because political deliberation is a form of prac­ tical reasoning, epistemic norms, which govern what we should believe, are the wrong kind of norms. Practical reasoning is concerned with what we should do, not with what we should believe, they might say. They’re of course correct to hold that political deliberation is ultimately about what should be

Epistemic Norms Of Political Deliberation  145 done. But as we already saw in earlier chapters, especially in relation to the arbitrariness objection against will-­based conceptions and to the significance of epistemic accountability, epistemic considerations matter for political legitimacy. The right account of the normative role of political deliberation accommodates this dependence of political legitimacy on epistemic considerations. Let me further develop the main thought, now focusing on the relationship between practical reasoning and theoretical reasoning. I grant that practical reasoning and theoretical reasoning are distinct. Whereas practical reasoning answers a question about what should be done, theoretical reasoning answers a question about what should be believed. But practical reasoning is typically in response to a particular situation, actual or hypothetical, and thus to a set of beliefs about this situation. The relevant beliefs will be a mixture of norma­ tive and non-­normative beliefs, as we saw earlier, and, everything else equal, practical reasoning will be better if it draws on warranted beliefs. Good the­or­ et­ic­al reasoning is thus a basis for good practical reasoning. To use an everyday example to illustrate the point, consider the reasoning that goes into deciding what to order for dinner. Of course, tastes will play a role—­what you fancy that day, what is convenient, etc. But theoretical reason­ ing will also play a role, for example reasoning about the environmental impact of different types of food, or reasoning in relation to dietary restric­ tions. In my case, because I am coeliac, which is an autoimmune disease, I  can’t eat anything containing gluten. My practical reasoning about what I should eat is thus dependent on the normative belief that certain types of foods are harmful for me and should be avoided. I acquired this belief when I was diagnosed with coeliac disease many years ago. My reasoning will also be influenced by empirical beliefs about the ingredients of different dishes. Looking at a restaurant menu, I can try to guess which dishes are gluten-­free and order accordingly. Or I can ask restaurant staff for more information about the dishes. If I have reason to believe that the restaurant staff are well trained, the second option is likely to lead me to form better beliefs than the first about what I can and can’t eat. If I have reason to believe that the res­taur­ ant staff are not well trained, however, my own guesses might be better, as I have relevant background knowledge of which foods contain gluten. The case illustrates how my practical reasoning—­about what I should order—­benefits from good theoretical reasoning about the need to avoid glu­ ten and about which dishes contain gluten. Non-­theoretical considerations, such as my tastes in food, will obviously also play a role in deciding what I

146  The Grounds of Political Legitimacy should order. But good practical reasoning about what I should order also depends on the epistemic status of my normative and empirical beliefs. If I  were just to order what I fancy without paying attention to the evidential situation, I would make worse choices. The epistemic status of our political beliefs, similarly, matters for good practical reasoning in political contexts. For example, if resistance to govern­ ment spending on social security is driven by demonstrably false beliefs about how much benefit fraud costs the government, this undermines the validity of claims that social security is too costly. Just like in the individual case, every­ thing else equal, better theoretical reasoning improves political deliberation and, in this way, improves the prospects of making the right political deci­ sions. And this is the reason why epistemic norms matter for well-­ordered political deliberation: political deliberation isn’t just an exercise in practical reasoning, it also depends on good theoretical reasoning. What is more, well-­ ordered political deliberation presupposes good theoretical reasoning. If political deliberation doesn’t satisfy relevant epistemic norms, it is more likely to support the wrong political decisions. Another way to put the same idea is that we can accept that epistemic nor­ mativity and practical normativity are two distinct normative domains and that questions about what we should do, including in a political context, belong to the latter, not the former. We can’t reduce practical normativity to epistemic normativity. However, to the extent that what we should do is determined by the evidence-­relative ought, what we should do depends on what we should believe.

(c)  Epistemically Constrained Practical Reasoning To shed further light on the significance of epistemic norms of political de­lib­er­ ation it helps to recognize that they represent an elaboration of practical reason­ ing norms. Epistemic norms add a distinct concern, beyond what norms of purely practical reasoning capture.1 The latter focus only on whether a particular contribution to political deliberation c(p1, . . ., pn) is well supported by relevant premises. Epistemic norms add that beliefs in relevant premises must satisfy a certain epistemic standard for the contribution to be valid. In Chapter 6, I characterized practical reasoning norms as follows: 1  See Brown (2008) for a general discussion of epistemic norms of practical reasoning.

Epistemic Norms Of Political Deliberation  147 Practical reasoning norm:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if c(p1, . . ., pn) is a result of good practical reasoning. Epistemic norms add to this by relating good practical reasoning about c(p1, . . ., pn) to the epistemic status of belief in the premises p involved. I described them as follows: Epistemic norm:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if beliefs in p1, . . ., pn have a certain epistemic status. Pulling both norms together, we can thus characterize an epistemic norm of good practical reasoning as follows: Epistemic norm of practical reasoning:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid if / only if c(p1, . . ., pn) is a result of good practical reasoning based on beliefs in (p1, . . ., pn) that have a certain epistemic status. As this is a fairly clumsy statement, and because the two components are separable, it will be simpler to use the original statements in what follows. But the integrated statement helps us to see that epistemic norms, thus understood, add to the received understanding of norms of good reasoning by making it transparent how the validity of contributions to political deliberation depends, inter alia, on the epistemic status of belief in the premises on which political deliberation rests. Everything else equal, valid contributions c(p1, . . ., pn) don’t rely on premises that shouldn’t be believed. Note that even in the integrated statement, the everything else equal clause is there to flag that other norms of political deliberation—­specifically, partici­ pation norms—­might also be relevant in determining validity. For example, an epistemic practical reasoning norm might identify a contribution as not valid because it rests on unwarranted beliefs, but a participation norm—­for example, a free speech norm—­might hold that the contribution deserves to be made, not suppressed. I’ll say a lot more in Chapters 8 and 9 about how to balance different kinds of norms in well-­ordered political deliberation. First, we need to get clearer on the sort of demands that epistemic norms might make on political deliberation.

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(d)  A Note on Political Context Allow me a quick note on political context before I consider candidate epi­stem­ic norms in the next two sections. In addition to the everything else equal clause, the context clause also serves to constrain a norm’s impact on the validity of contributions to political deliberation. I’ve included a context clause in all norms of political deliberation that I’ve discussed so far, to highlight that what can be validly claimed in political deliberation might differ from one context to another. Why does context matter? A first relevant distinction is between the pol­it­ ical context and other contexts. Claims that are valid in a scientific context need not be valid in a political context, for example, and vice versa. Consider the validity of religious beliefs. Many religious beliefs tend not to satisfy the epistemic norms of scientific discourse, implying that many claims based on religious beliefs will not be valid in a scientific context. But that need not mean that contributions to political deliberation that involve such religious beliefs as part of the premises are not valid. What counts as a justified belief in the political context need not count as a justified belief in the context of scien­ tific inquiry. Plausible epistemic norms of political deliberation are likely to impose weaker demands than the epistemic norms of scientific inquiry. The latter has more ambitious epistemic aims, has more epistemic resources, and operates under fewer practical constraints. In addition, we also need to distinguish between different contexts within political deliberation. Political deliberation comprises a wide variety of contributions—­from parliamentary debates to Twitter threads and everything in between. Not all contributions are equally influential in shaping political decision-­making and for some contributions the stakes are much higher than they are for others. A political representative’s contribution to parliamentary debate typically is more influential than the pamphlet of a small political interest group. And an incendiary Tweet spiked with false claims by Trump when he was still president is far more detrimental for well-­ordered political deliberation than a similar Tweet by an anonymous contributor with no fol­ lowers. We should thus expect that different norms of practical reasoning, including epistemic norms, apply in high-­stakes and low-­stakes contexts.2 The idea that there are different norms in different contexts of political deliberation is familiar from John Rawls’ concentric circles model of the

2  See Gerken (2011) on how epistemic norms of practical reasoning vary with what is at stake.

Epistemic Norms Of Political Deliberation  149 public sphere (Rawls 1993: 220). The model distinguishes, roughly speaking, between a background political culture, the sphere of political deliberation at large, and a circle within that, the public political forum, which comprises deliberation that is most immediately connected to political decision-­ making. Rawls argues that the norms of public reason apply with particular stringency to those with more political power as they have greater responsi­ bility for ensuring that political decision-­making is appropriately justified. So on Rawls’ view, contributions from political office holders and other political leaders are subject to more stringent demands than contributions from other citizens. To be sure, Rawls introduced the model to address a concern with the role of religion and of controversial moral beliefs in politics. He argued that pol­it­ ical office holders and other political leaders should refrain from making or proposing political decisions based on controversial moral and religious claims as this could be in tension with the requirement that political decisions be justified in terms of reasons that all citizens can share. The model is rele­ vant beyond a concern with controversial moral and religious beliefs, how­ ever, and is useful to articulate the idea that norms of political deliberation might differ depending on the political context. More specifically, I think that Rawls is right that political deliberation in contexts closer to political decision-­making is subject to more demanding norms of deliberation than in contexts that are further removed from decision-­making. More demanding norms should ensure that the justificatory role of political deliberation is appropriately preserved.

7.2  The Justified Belief Norm What sort of epistemic constraints on well-­ordered political deliberation are appropriate? In response to worries about post-­truth politics and fake news, it might be tempting to think that truth plays an important role in well-­ordered political deliberation. Isn’t truth the cure for post-­truth politics? And isn’t “speaking truth to power” an important idea that bears on legitimate political decision-­making? In this section, I consider a range of substantive epistemic norms of pol­it­ ical deliberation. I argue that while it’s tempting to think that truth plays an important role in well-­ordered political deliberation, we should reject a truth norm of political deliberation. I defend a weaker epistemic norm, which I call the justified belief norm.

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(a)  Must Political Deliberation Be Based on Truth? Let’s consider a truth norm first. It might look as follows: Truth norm of political deliberation:  everything else equal, A’s contribution c(p1, . . ., pn) to political deliberation in context x is valid iff p1, . . ., pn are true.3 Or, to simplify, focusing on just one premise: Truth norm of political deliberation:  everything else equal, A’s contribution c(pi) to political deliberation in context x is valid iff pi is true. This truth norm specifies that the validity of contributions to political de­lib­ er­ation is determined by the truth of the premises on which the contribution rests: as I’ve stated it, it is both necessary and sufficient for a valid contribu­ tion that it rests on true premises. An advantage of such a truth norm is that it can lend validity to claims that struggle to get heard in political deliberation even though, and because, they report grave social injustices. Some claims about racist or sexist dis­crim­in­ ation, for example, might have validity independently of the evidence for such discrimination, and despite the entrenched disagreements that might sur­ round them (Srinivasan 2020). This said, I don’t think that such a norm is a plausible constraint on pol­it­ ical deliberation. There are several problems with it, and these problems relate to my arguments against factualism as a ground of political legitimacy in Chapters 3 and 5. A first problem is that a truth norm is too demanding. The norm would rule out too many perfectly adequate contributions to political deliberation. For example, I take it most people will agree that there is noth­ ing wrong with contributions to political deliberation that draw conclusions about how to mitigate environmental risks based on the best scientific models—­ everything else equal, these are valid contributions to political deliberation. But while these models give us reasons to believe (some of) the relevant empirical claims, such contributions are not asserting a truth. The contribution may well rest on premises that are false. Scientific models tend to simplify and only focus on certain considerations. They give us good

3  This norm draws its inspiration from the truth norm of assertions defended by Weiner (2005) and Whiting (2013).

Epistemic Norms Of Political Deliberation  151 r­ easons for believing that something is the case, or will be the case, but they rarely give us truth (e.g. Cartwright 1983). If that’s the right account of how scientific models explain, we have to con­ clude that what makes contributions to political deliberation that draw on scientific expertise valid isn’t the truth of the premises on which they rest. Instead, their validity derives from how scientific studies respond to relevant evidence and expertise. In general, as much political deliberation takes place in the realm of uncertainty about the circumstances of political decision-­making and often involves assumptions that turn out to be false in hindsight, a truth norm would rule out too many contributions as not valid. To be fair, the truth norm as I’ve stated it is quite strong. Weaker versions include either the necessity or the sufficiency condition, but not both. Truth normN:  everything else equal, A’s contribution c(pi) to political de­lib­er­ation in context x is valid only if pi is true. Truth normS:  everything else equal, A’s contribution c(pi) to political de­lib­er­ation in context x is valid if pi is true. Can these weaker versions of the truth norm escape the demandingness objection? The necessity version can’t, as it says that only contributions that rest on true premises are valid. The sufficiency version of the truth norm can, however. As it only says that truth is sufficient for the validity of a contribu­ tion, not that truth is required, contributions that involve false premises might still be valid. However, a further—­related—­problem with the truth norm also affects the sufficiency condition. Because truth is often inaccessible, the truth norm fails to effectively govern deliberation in circumstances where it is not self-­evident which premises are true. If the political context was characterized by an abun­ dance of epistemic resources, such that true claims would be common, this would not be a problem. If contributions based on true beliefs were common, they would reliably guide political deliberation towards the right political decisions. But the political context is very messy and complex, and political deliberation typically proceeds in conditions where it is unclear, to say the least, what the right political decisions are. Epistemic norms should thus offer guidance on how to respond to available evidence, to disagreement, and to demands for reasoned justification for conflicting claims. The truth norm doesn’t offer any guidance in this regard. Because of its inability to guide political deliberation in circumstances of epistemic scarcity, a truth norm could end up supporting problematic

152  The Grounds of Political Legitimacy recklessness in political deliberation and political decision-­making.4 If contri­ butions to political deliberation were valid as long as they are true, this would de-­emphasize the need to provide evidential support for one’s claims and to demonstrate that they constitute an adequate response to the inevitable uncertainty that surrounds much political deliberation and decision-­making. Given epistemic scarcity, the possibility of making wrong, even very wrong, political decisions always looms large. And plausible norms of political de­lib­ er­ation should thus guide us in identifying better and worse responses to this epistemic predicament—­something that the truth norm can’t do. You will perhaps have noticed that this argument from recklessness against a truth norm of a political deliberation echoes aspects of my argument against factualism as a ground of political legitimacy in Chapter 3. My argument against factualism centred on the accessibility objection, if you recall: I argued that a conception of political legitimacy can only respond adequately to the threat of making the wrong decisions if the ground of political legitimacy is accessible in judgment. As we might not be able to access in judgment what political decision is warranted by the normative facts in a given situation, fact­ual­ism is the wrong account of the ground of political legitimacy. My argument here is a restatement of this worry: to contain reckless political decision-­making, which might put us at great risk of catastrophically wrong decisions, the norms of political deliberation must require us to respond to evidence and expertise. Everything else equal, accordance with the truth is not sufficient for a valid contribution. So far, I have argued that political deliberation should not be subject to a truth norm because of the demandingness problem and the recklessness problem. To help stir political deliberation towards the right decisions and prevent it from supporting the wrong decisions, epistemic norms shouldn’t just focus on the content of beliefs, independently of how they are formed. Instead, legitimacy-­ conferring political deliberation needs to respond ad­equate­ly to available evidence and expertise.

(b)  Against Knowledge Norms Can the problems with a truth norm be avoided if we interpret the epistemic validity of contributions to political deliberation in terms of truths that are accessible—­by replacing a truth norm with a knowledge norm? 4  See Peter (2021b) for a longer discussion of this point. The recklessness worry, in a context of moral truths, also echoes Rawls’ well-­known worry that appeal to truth-­driven political deliberation is divisive (Rawls 1993).

Epistemic Norms Of Political Deliberation  153 Knowledge norm:  everything else equal, A’s contribution c(pi) to political deliberation in context x is valid if / only if A knows that pi.5 As stated, the norm says that, everything else equal, the validity of a contribu­ tion to political deliberation depends on whether A has knowledge of relevant premises. What should we say about a knowledge norm? I’ve already argued against the truth norm on the basis of it being too demanding. The necessity version of the knowledge norm, which, on a standard account of knowledge, requires that all premises are both true and believed with some justification, is even more demanding and that suggests that we should not expect political de­lib­ er­ation to conform to a knowledge norm either. There are too many uncer­ tainties in the political context to allow for a meaningful restriction of well-­ordered political deliberation to what is known. As I’ve already argued, even the best scientific advice—­the kind of advice we would want political decisions to be based on—­tends not to consist of what is known but reflects a temporary broad consensus among scientists about what is justifiably believed in this regard. More generally, we typically don’t have knowledge of all the relevant aspects of the situation we’re in, empirical and normative, but political decisions need to be made and assessed anyway. As the Dutch prime minister Mark Rutte put the problem after the Covid-­19 crisis broke out: “In crises like this, you have to make 100 percent of the decisions with 50 percent of the knowledge.”6 It could be objected that the knowledge norm could be saved from the demandingness problem if relevant knowledge was understood to include doxastic states that involve uncertainty.7 Such an approach would include premises that involve probabilities that are not sharp. For example, a contri­ bution to the effect that lockdown in response to Covid-­19 is necessary might rest on the premise that hospitals won’t be able to cope with probability falling in a spectrum between 0.75 and 1. What makes this objection forceful is that it highlights how actual political deliberation is often insufficiently nuanced and that well-­ordered political deliberation rests on norms that ensure that political deliberation responds to more fine-­grained contributions. I don’t think we can save the knowledge norm in this way, however, for the following reason. Even if we went down 5  The knowledge norm draws (loosely) on Williamson (2000) and Stanley and Hawthorne (2008), among others. 6  See https://nltimes.nl/2020/03/12/everyone-­stay-­home-­sick-­many-­events-­banned-­dutch-­government-­ tightens-­coronavirus-­rules. I thank Jeroen de Ridder for the example. 7  I thank Patricia Rich for pressing me on this point; see Rich (2021).

154  The Grounds of Political Legitimacy that route, this would still rule out too many contributions as invalid that should not be ruled out. The typical scientific contribution, for example, will be on well-­researched hypotheses and inferences to the best explanation, but not necessarily knowledge. And it might also be challenging to identify the fuzzy probabilities that capture uncertainty about relevant normative prem­ ises. Either way, the demandingness problem will remain.8 What about the sufficiency version of the knowledge norm? It says that contributions that are based on premises that are known are valid. I’m happy to grant that in many contexts of political deliberation, that norm is unprob­ lematic. For example, consider an eye-­witness report condemning a violent political incident. Suppose they know what happened because they were able to observe all relevant facts and report accordingly. Everything else equal, such a contribution must be valid and well-­ordered political deliberation responds to it. If that’s correct, the sufficiency version of the knowledge norm offers an explanation. If we were able to restrict contributions to political deliberation to claims that are based on what is known, then problematic political risk-­taking would be ruled out. Compared to the truth norm, the knowledge norm thus has the advantage of offering some protection from the recklessness problem. However, if I’m right to think that the knowledge norm is too demanding in the typical epistemic circumstances of politics, we should not place too much hope on this norm: it will typically not be met.

(c)  The Justified Belief Norm If restricting the validity of contributions to political deliberation to contribu­ tions that rest on true premises is too demanding, we need to consider weaker epistemic norms. The epistemic norm that I think is attractive in many pol­it­ ical contexts, is a norm that relates the validity of contributions to what is justifiably, or reasonably (Lackey 2007: 596), believed. Consider this necessity version: Justified belief norm:  everything else equal, A’s contribution c(pi) to pol­it­ical deliberation in context x is valid only if A is justified to believe pi. 8  Note that even for contributions where this solution avoids the demandingness problem, this way of accommodating the challenging epistemic circumstances that typically surround political decision-­ making is likely to exacerbate the epistemic underdetermination objection (see Chapter 4), as it will potentially generate considerable ambiguity on what the right decision is in a given situation.

Epistemic Norms Of Political Deliberation  155 Such a justified belief norm is distinctive as long as knowledge or truth is not required for a justified belief, and it is weaker than either of those norms if it can be satisfied even if a belief turns out to be false. A justified belief norm, understood as a necessary condition, is a much more plausible constraint on political deliberation than knowledge or truth norms. It is less demanding than either of those norms because it accommo­ dates the need for making assumptions in political deliberation that may, in hindsight, turn out to have been false. Contributions that are based on recog­ nized scientific expertise, in particular, qualify as valid, as do other contribu­ tions that rest on justified beliefs. A further consideration in favour of the justified belief norm is that it’s not too undemanding and, as such, it can help to keep political recklessness in check. To be sure, it doesn’t save us from grave political mistakes. What is justifiably, or reasonably, believed may well turn out to be very far off the mark. But it blocks contributions based on groundless beliefs and unwar­ ranted confidence. In addition, the justified belief norm helps to keep reck­ lessness in check because it invites the interrogation of all contributions to political deliberation. If the validity of your contribution depends on whether you are justified to believe a politically relevant premise pi, it is meaningful to ask you about that justification. While I think that a justified belief norm has some appealing features, requiring that all of political deliberation satisfies the norm would go too far and subject political deliberation to too much unwarranted interrogation and censorship. What counts as a justification for belief and who is well placed to examine the justification of our beliefs? The problem will be particularly tricky for some of our moral beliefs, but not just for our moral beliefs.

(d)  The Censorship Worry This censorship worry, as we might call it, is importantly different from the demandingness problem. The demandingness problem highlights that a candidate epistemic norm would rule out contributions that seem valid and that should be part of well-­ordered political deliberation. I pointed out how many scientific contributions would have to be considered as not valid if well-­ordered political deliberation was limited to contributions based on true premises. The censorship worry, by contrast, arises because the sort of validity that justified beliefs confer might be in tension with other sources of validity.

156  The Grounds of Political Legitimacy I think that the censorship worry must be taken very seriously. But I don’t think it undermines the case for a justified belief norm, for several reasons. First, we’ve noted before that epistemic norms are not the only type of norm that govern well-­ordered political deliberation. One explanation for the cen­ sorship worry is that epistemic norms might conflict with participation norms. Given the challenging epistemic circumstances of politics, requiring that well-­ordered political deliberation be based on premises that are jus­ti­fi­ ably believed might end up undermining, rather than promoting, legitimate political decision-­making because it ends up excluding too many potentially valid contributions. I return to this issue in Chapter 9, when I discuss political disagreements. Second, the censorship worry invites us to carefully consider when political beliefs count as justified, and when we should accept that political de­lib­er­ ation is epistemically underdetermined because it has uncovered a plurality of conflicting, but valid claims—­all based on contributions that involve justified beliefs. Religious beliefs are a case in point. What does the justified belief norm entail for contributions that involve religious beliefs? Martin Luther King, for example, frequently relied on certain religious beliefs in his political speeches. Does the justified belief norm make such contributions invalid?9 That would be the wrong conclusion to draw, I think. My reasoning is the following. I think that in the epistemic circumstances of politics, it’s not normally possible to show that belief in God is not justified. In light of the importance of religious belief in many people’s lives, and the centuries of scholarship on this issue, many widely held religious beliefs will go through as justified in the political context (see my comments in the previ­ ous section). A plausible interpretation of the justified belief norm will thus allow that contributions to political deliberation that rely on such beliefs—­ such as those from Martin Luther King—­are prima facie valid. I would also add, however, that the converse is true as well: many justified political beliefs depend on atheism. More likely than not, well-­ordered political deliberation on issues that involve religious beliefs will end up uncovering a plurality of valid, but conflicting political claims. This weakens the prospect of any le­git­ im­ate decision-­making that would be justifiable only from within a particular religious or atheist worldview. Finally, I think that the justified belief norm is only an appropriate con­ straint on the validity of contributions in some political contexts, but not in others. In particular, I think it’s an appropriate norm in circles closely related 9  I thank an anonymous reviewer for pressing me on this point.

Epistemic Norms Of Political Deliberation  157 to political decision-­making—­in deliberation in parliament or cabinet, for example, but also in deliberation leading up to voting in elections and refer­ enda. For political deliberation at large, say everyday political deliberation on social media, weaker epistemic norms will be more appropriate as they will set a minimal epistemic requirement for well-­ordered political deliberation without running into the censorship worry.10 Weaker epistemic norms stand a better chance of avoiding the censorship worry than the justified belief norm, but they raise an opposite worry, espe­ cially in contexts close to decision-­making. Very weak epistemic norms will do less well in protecting political deliberation from false beliefs. False beliefs are problematic in several ways. As they may support false conclusions about what the best decision is in particular circumstances, they are problematic if held by decision-­makers, and more problematic, the more consequential political decisions are. But false beliefs held by ordinary citizens are problem­ atic in a different way. They can be exploited by ruthless politicians and pol­it­ ical influencers.11 If false beliefs lead citizens to support political decisions that they would not support if they did not hold those false beliefs, there is an incentive for those benefiting from the unwarranted decisions to manipulate political deliberation, such that these false beliefs are upheld by sufficient numbers of people. While this might not justify the decisions and make them legitimate, it gives them apparent political legitimacy if sufficient numbers of citizens are in favour of them. In circles close to political decision-­making, there are thus reasons to opt for a more demanding epistemic norm—­such as a justified belief norm.12 As my focus in this book is ultimately on legitimate decision-­making, and thus on the settling function of political deliberation, I’ll be primarily concerned with well-­ordered political deliberation in decision-­making contexts, rather than with epistemic norms for political deliberation at large. But this is not to deny that the justified belief norm might be too restrictive when it comes to political deliberation at large.

10  In Peter (2021a) I discuss a norm I call avoiding obvious falsehoods. It holds that contributions to political deliberation that are based on obvious and demonstrable falsehoods are not valid. 11  See also Hannon (2021) on the political gains of upholding false beliefs. Funkhouser (2022) argues that recklessly false political beliefs can function as test cases for the commitment to a particu­ lar political group or movement. 12  This holds at least as long as it’s not possible to offset a weaker epistemic norm with epistemic benefits at the collective level, because of beneficial effects related to the Condorcet jury theorem or the numbers-­trump-­ability theorem (see chapter 4). If a weaker epistemic norm is sufficient to ensure that collective deliberation is able to reliably track the right decisions, then a weaker norm is sufficient for well-­ordered political deliberation even in decision-­making contexts.

158  The Grounds of Political Legitimacy We can relate the censorship worry, especially in that broader deliberative context, to what I labelled the constructive function of political deliberation earlier (in Chapter 5). It is a political fact that most political beliefs are heavily contested and contestable. Weaker epistemic norms have the advantage of not foreclosing questions about validity too soon, which might be unduly stifling the process of discovery that is an important function of well-­ordered pol­it­ ical deliberation. At the same time, they still capture the constraint that legitimacy-­conferring political deliberation cannot be based on premises that are obviously and demonstrably false.

7.3  Procedural Epistemic Norms The justified belief norm and other epistemic norms I discussed in the previ­ ous section are examples of substantive epistemic norms. Such norms are essential for well-­ordered political deliberation, but they are not enough. In this section, I argue that procedural epistemic norms, which govern how we should respond to the contributions from others, are equally important. In particular, I argue that one such norm—­a responsiveness norm—­is key for well-­ordered political deliberation.

(a)  What Is Responsiveness? The validity of contributions to political deliberation doesn’t just depend on whether they’re well supported by first-­order evidence. Valid contributions also respond adequately to higher-­order evidence available in the form of contributions from other participants. Procedural epistemic norms capture this constraint on validity. Consider political deliberation about abortion as an example to illustrate the main idea here. Whether contributions to political deliberation on this issue are valid doesn’t just depend on whether citizens have considered all the relevant first-­order evidence in relation to empirical and normative premises for particular views on how abortion should be regulated. Given that the focus of political deliberation is a high-­stakes political decision that governs the life of all citizens, not a private decision, and given the contested nature of many political beliefs in relation to abortion, whether a contribution has responded well to the contributions from others is a factor in the validity of that contribution, or so I want to argue.

Epistemic Norms Of Political Deliberation  159 We can capture this concern in a responsiveness norm, stated as a necessary requirement for well-­ordered political deliberation: Responsiveness norm:  everything else equal, A’s contribution c(pi) to political deliberation in context x is valid only if A is justified to believe pi even after appropriately adjusting their original confidence in pi in response to political disagreements or testimony concerning pi. I’ll have a lot more to say about both political disagreements and testimony in the next two chapters. Here I just limit myself to introducing the basic idea underlying the responsiveness norm. In the general form in which I have stated it, the responsiveness norm is compatible with different ways of spelling out what counts as an appropriate response. It can thus be fleshed out in more or less demanding ways. Very generally speaking, we can distinguish between two main types of cases. In the first, the participants are roughly equal in their capacity to assess relevant evidence, or at least they have no strong reasons to consider themselves as superior or inferior to others in this regard. In the second, the participants are not equal, and participants have reasons to consider themselves as epi­stem­ic­ al­ ly superior or inferior to others with respect to the question under consideration.

(b)  Responsiveness to Political Disagreements The literature on the epistemology of disagreements mostly focuses on the first type of cases and the responsiveness norm captures a core idea from this literature (Christensen 2007; Elga 2007; Kelly 2010; Lackey 2010). The idea is this: some of your disagreements with others have the capacity to change the justification you originally had for your belief and to put you under a norma­ tive expectation to adjust your belief. Building on this idea, the responsive­ ness norm of political deliberation holds that the validity of contributions to political deliberation doesn’t just depend on deliberation-­independent evi­ dence for one’s beliefs, it also depends on how participants respond to each other’s contributions in political deliberation.13 Because the norm as I’ve stated it leaves it open what sort of response is required to a political disagreement, it is not vulnerable to most of the 13  I first discussed the idea in Peter (2013a).

160  The Grounds of Political Legitimacy objections that have been raised against particular positions in the epistemol­ ogy of disagreement. The reason for having such a norm is to secure some level of uptake and to rule out extreme forms of dogmatism, which would lead you to ignore the contributions of others, no matter how well founded. But the norm doesn’t imply that well-­ordered deliberation always requires keeping an open mind. It leaves open, for example, whether only disagree­ ments with people you regard as your epistemic peers have the capacity to impact on the justification of your belief, or whether other disagreements have this capacity as well.14 It also leaves open whether disagreements with epistemic peers always require that you reduce confidence in your original belief or whether this is not so. In matters of public controversy, it is often difficult to separate out what one should believe about a particular political issue, whether it is Brexit, or climate change, or health care reform, and what one should believe about different contributors’ abilities to assess the issue. This difficulty can remove pressures to conciliate and means that the respon­ siveness norm is compatible with deep political disagreements.15 To illustrate the norm, consider first a scenario with only three possible doxastic states: belief that p, belief that not-­p, and belief suspension. Suppose a member of parliament argues that environmental legislation that exceeds the demands of the Paris agreement is unjustified, because of the economic costs involved. Suppose that contribution is then heavily criticized in the press and by members of opposing political parties, on the grounds that the Paris agreement is not going far enough to mitigate the climate crisis, and that the economic costs of failing to mitigate the crisis are likely to be far higher. Suppose the member of parliament made the original contribution in good faith, taking the Paris agreement as evidence that further measures would be supererogatory. But suppose also that the critical contributions cite important more recent studies on what sort of measures are necessary to mitigate cli­ mate change. The responsiveness norm says that even if the original contribu­ tion was valid, there comes a point where the member of parliament loses their justification to believe that measures beyond the Paris agreement are supererogatory and will be rationally required to at least suspend belief in this matter. If that member of parliament were to bang on with their original point, their contribution would lose its original validity.

14 An epistemic peer is someone whom you regard as equally likely to form a correct belief regarding p. 15  See Christensen (2014) on this, as well as several contributions in Johnson (2018). See also Goldberg (2015) for a discussion of systematic disagreements.

Epistemic Norms Of Political Deliberation  161 The norm also puts pressure on purely moral beliefs. To return to the ­abortion example, suppose we’re considering a radical anti-­abortion stance in political deliberation, such as that abortion should never be legal, say on grounds that abortion is morally akin to murder. The responsiveness norm holds that in the context of political deliberation (which, as mentioned, is dif­ ferent from the context of private moral or religious deliberation), there may come a point where the presence of political disagreements about the moral permissibility of abortion, if advanced with sufficient support and credibility, undermines the validity of the radical stance, however justified it might have been originally. If we also consider degrees of belief, the demands of the responsiveness norm are a bit more subtle, as the appropriate response to disagreements might be a reduction in confidence in relevant political beliefs, without this affecting the stance that is taken.16 For example, suppose a political party is trying to decide where to stand on Covid restrictions at a time when the virus is not fully under control: should they be more pro-­restrictions or more pro-­ opening? This sort of political choice inevitably involves great uncertainty. Suppose the party leadership is initially strongly pro-­opening, taking the view that it’s a risk worth taking. As the debate goes on, the party leadership reduces its confidence in the benefits of a quick re-­opening, while still main­ taining that it’s a risk worth taking. This sort of response may well satisfy the demands of the responsiveness norm. Even in this context, it’s possible that well-­ordered political deliberation will end up undermining the original stance. Suppose that, after further extensive debate involving large numbers of party members, it becomes quite clear that there are strong reasons to think that an early opening risks poten­ tially very high health costs for the population. Given the uncertainties about the benefits of early opening and mounting evidence for the likely costs, we should expect that there will be a point where the party leadership can no longer validly maintain the pro-­opening stance: whatever confidence it ori­ gin­al­ly justifiably had in its benefits will be eroded by the counter-­arguments.

(c)  Responsiveness to Testimony The responsiveness norm also covers the second type of cases, those where there is an epistemic asymmetry among the participants, such that some are 16  See Buchak (2021) for an illuminating discussion of this issue.

162  The Grounds of Political Legitimacy epistemically superior to others.17 Consider the climate change example again. There is now an overwhelmingly strong scientific consensus on the fact that a climate crisis is unfolding that requires urgent mitigation. The respon­ siveness norm says that those who still deny this are under pressure to adjust their beliefs or their contributions lose their validity. Just as the responsiveness norm can demand that contributors to political deliberation defer to contributors who are their epistemic superiors, the responsiveness norm can also justify remaining steadfast if confronted with contributions that are based on less well-­informed political beliefs. This will be relevant for some expert opinions. But for reasons I already highlighted in Chapter 4, it might also affect contributions from marginalized groups, if their political beliefs are based in experiences that are not well reflected in mainstream political debate. I return to this issue in Chapter 8. A further feature of the responsiveness norm is that it shapes the uptake of new political perspectives via testimony. As such, it plays potentially an important role in the transformation of political beliefs. Many of the premises on which political deliberation and political decision-­making rest are hidden, such that those contributing to political deliberation may not be aware of all the assumptions on which their contributions rest. Political conflicts have the potential to highlight these hidden premises and to demand reflection on them. Political deliberation on issues involving the interests of marginalized groups is a good example. One of the important contributions of the Black Lives Matter movement in the US was to highlight the excess violence that black people are experiencing at the hands of the police. Now that the point has been made, based on overwhelming evidence, we should expect well-­ ordered political deliberation to no longer bracket the premise that there is a track-­record of excess violence in political deliberation concerning the police. The responsiveness norm explains this by stating that contributions that neglect or deny this track-­record of excess violence have lost validity due to a failure to respond to the challenge from the Black Lives Matter movement.18

(d)  Epistemic Injustice I think it’s appropriate to pause here and consider the objection that the responsiveness norm doesn’t address an important distortion in political 17  On the epistemology of testimony, see Lackey and Sosa (2006). 18  Táíwò (2022) has a rich discussion of the opportunities for such political transformation and its challenges.

Epistemic Norms Of Political Deliberation  163 deliberation. That distortion is a result of the epistemic value of contributions being assessed differently depending on the social status of the contributors. In other words, the objection is that the responsiveness norm does not address problems of epistemic injustice, even though problems of epi­ stem­ic injustice are a main reason why political deliberation tends to be not well ordered. I agree that well-­ordered political deliberation must avoid epistemic injustice. What is epistemic injustice? There are different forms of epistemic in­just­ ice, a key distinction being between distributive and discriminatory forms of epistemic injustice (Fricker 2013). The former highlights problems in the dis­ tribution of epistemic goods such as education. The latter highlights problems with “identity prejudice” (Fricker 2007) in assessing the contributions of dif­ ferent epistemic agents. Epistemic agents are wronged if non-­epistemic con­ sid­er­ations such as someone’s social identity—­their gender, race, or class, for example—­are having an effect on their standing as epistemic agents. Distributive epistemic justice is of instrumental value for well-­ordered political deliberation, and it is also an important aspect of a properly fleshed-­ out account of participation norms. Without sufficient access to education, for example, it is difficult for citizens to participate as equals. Avoiding epi­ stem­ic discrimination injustice, by contrast, is integral to the epistemic well-­ orderedness of political deliberation. Political deliberation is epistemically skewed if only the contributions of some groups of citizens are perceived as valid, on grounds of their social identity, and if those of others are discounted for non-­epistemic reasons. We can use the general framework of epistemic norms to capture the con­ cern with epistemic injustice in an epistemic justice norm: Epistemic justice norm:  everything else equal, A’s contribution c(pi) to pol­it­ical deliberation in context x is valid only if A is justified to believe that pi even after appropriately adjusting their original confidence in pi to correct for identity prejudice. This epistemic justice norm says that well-­ ordered political deliberation refrains from discounting the contributions from some citizens because of their social identity, not the epistemic status of belief in relevant premises. Epistemically well-­ordered political deliberation doesn’t silence some social groups on non-­epistemic grounds. Everything else equal, it factors in all p-­related contributions as long as belief in a premise pi has a certain epi­ stem­ic status.

164  The Grounds of Political Legitimacy You might ask: shouldn’t this epistemic justice norm be recast as a ­participation norm, rather than an epistemic norm?19 Achieving inclusivity is a trad­ition­al concern of deliberative democrats and addressed in norms of equal respect, for example. In reply, let me emphasize that there is a great deal of overlap between an equal respect norm and the epistemic justice norm that I’m proposing here. And I return to epistemic justice when I consider the importance of social inclusivity for legitimacy-­conferring political de­lib­er­ation in Chapter 9. But, to echo Miranda Fricker (2007), it’s important to recognize that patterns of epistemic injustice are not just socially exclusive, they also harm potential participants in distinctively epistemic fashion. The epi­stem­ic justice norm emphasizes that achieving inclusivity in political de­lib­er­ation isn’t just a concern with standing to contribute; it is also a concern with recognizing the validity of what is being asserted in political deliberation by different social groups.20 Or, to put the same point differently, inclusivity doesn’t just play a role in determining to whom political decisions must be justified; it also affects the potential of political deliberation to track the right decisions. In sum, responsiveness and epistemic justice are two procedural epistemic norms that complement each other. Together they ensure that well-­ordered political deliberation responds adequately to contributions from other ­participants, and that what counts as an adequate response to political ­dis­agree­ments isn’t biased by identity prejudice.

(e)  How Well-­Ordered Political Deliberation Supports Political Legitimacy In this chapter and the previous one I considered the norms that govern well-­ ordered political deliberation. In Chapter 6, I argued that well-­ordered pol­it­ ical deliberation satisfies participation norms as well as norms of good reasoning. Participation norms govern standing to contribute. Norms of practical reasoning require that contributions to political deliberation are supported by argument. I also argued that practical reasoning norms include epistemic norms. In this chapter, I’ve considered a range of possible epistemic norms of political deliberation, some substantive and some procedural. I’ve argued that in contexts close to political decision-­making, well-­ordered political decision-­making is subject to a justified belief norm. In broader 19  I thank Kenneth Baynes for this question.

20  See also Goldberg (2022) on this issue.

Epistemic Norms Of Political Deliberation  165 contexts of political deliberation, that norm might be too demanding because it might lead to undue censorship and social exclusion. But epistemic constraints should apply even in those broader contexts, to mitigate the pernicious effects of misinformation and disinformation on political de­lib­er­ation. In addition to substantive norms, well-­ordered political deliberation, at least in contexts close to decision-­making, also satisfies some procedural epistemic norms. I’ve considered a responsiveness norm and an epistemic justice norm. These epistemic norms specify that what counts as a justified belief also depends on how the citizens respond to each other’s contributions. Procedural epistemic norms aim to mitigate political dogmatism—­and extremism (Cassam 2021)— and the perpetuation of social biases in political deliberation. Pulling together the different strands of argument in the last two chapters, we can say that a valid contribution to well-­ordered political deliberation is a contribution from someone with standing that is supported by good the­or­et­ic­al and practical reasoning. We now need to take a closer look at how this notion of validity bears on legitimate political decision-­making. As we saw earlier (in Chapters 5 and 6), the demands that stem from respecting the citizens’ equal political authoritativeness, which are enshrined in participation norms, need not pull in the same direction as the demands that stem from respecting cognitive political authority. In Chapter 8, I focus on epistemic circumstances in which well-­ordered political deliberation establishes cognitive political authority. I show that in those epistemic circumstances, citizens are required to politically defer—­to set aside their own reasons for believing that some particular decision is the right one and defer to those with cognitive political authority. In Chapter 9, I  focus on epistemic circumstances where there is no cognitive political authority, and where well-­ordered political deliberation results in a plurality of valid—­but potentially conflicting—­political claims instead. My aim in this final chapter of the book is to discuss the implications of such political dis­ agree­ments for legitimate political decision-­making.

8 Political Deference Political deference, as I understand it, is deference to others on what the right political decision is in a given situation. If they defer politically, citizens set aside their own reasoning about what the right decision is in this situation and defer to others. Can political deference ever be required? Many would answer no. A requirement to politically defer is often seen as in conflict with core democratic commitments (e.g. Estlund 2008; Lafont 2020). The claim that political deference may be required thus needs a careful defence. Perhaps because it’s often thought to be indefensible in a democratic context, political deference hasn’t received all that much attention in con­tem­por­ary political philosophy and it’s worth exploring it for its own sake. Another reason for discussing political deference in this book is that it plays an im­port­ant role in the epistemic accountability conception of political legitimacy. In Part I of the book I introduced cognitive political authority as a possible ground of political legitimacy, and I drew on epistemic accountability to explain how decisions made on the basis of cognitive political authority are binding. But I  didn’t say anything specific about how epistemic accountability supports political deference to cognitive political authority. Now that we have a better understanding of the normative role of political deliberation, we can address this issue. Drawing on the account of well-­ ordered political deliberation that I developed in the previous two chapters, my aim in this chapter is to show why political deference to cognitive political authority may be required. This will also shed additional light on epistemic accountability and on how cognitive political authority bears on legitimate political decision-­making.

8.1  What Is Political Deference? A good start for a discussion of political deference is a comparison with other, more frequently discussed types of deference. In this section, I compare pol­it­ ical deference—­ as I understand it—­ with epistemic deference and moral deference. The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0008

Political Deference  167

(a)  Types of Deference Consider this example: experts across a range of fields (public health, ­epi­demi­ology, virology, hospital directors, etc.) argue that another lockdown is required to manage a new surge in Covid-­19 cases. You defer politically if, based on the experts’ contribution, you take lockdown to be the right decision in this case. Political deference is thus deference to someone else’s contribution to political deliberation—­or the claim made by a collective—­ about what the right political decision is in a given context. Importantly, and using the terminology I developed in the previous two chapters, if you defer to others’ contribution c(p1, . . ., pn)—that another lockdown is required in this situation—­this doesn’t mean that you’ve formed beliefs about p1, . . ., pn and concur that c—­that another lockdown is required. Instead, it means that you accept their contribution c at face value, so to speak. Political deference thus understood needs to be distinguished, first of all, from epistemic deference in politically relevant matters. Epistemic deference, in general, is deference to someone else’s judgment about what to believe. For example, you defer epistemically if your belief that it will rain tomorrow is formed on the basis of a meteorologist’s prediction that it will rain tomorrow. In a political context, you defer epistemically, but not politically, if in forming your own judgment about what should be done, you consider the experts’ testimony, alongside other inputs, and let that shape your opinion about what should be done in a given situation. A further type of deference that is worth considering here is moral deference. Moral deference is deference to the moral judgment of others. You defer morally if, when a friend you trust tells you that eating meat is wrong, you stop eating meat based on the testimony you’ve received. You thus do not rely on your own reasoning about the permissibility of eating meat, and instead defer to the reasoning of someone else. There is some overlap between political deference, epistemic deference, and moral deference as political claims typically rest on a mix of normative and empirical considerations. Suppose a government considers using legislation to reduce meat consumption in the population. The claim that meat consumption should be reduced will rest on both empirical premises (e.g. in relation to methane output, say, or stress levels of animals being brought to a slaughter house) and normative premises (e.g. in relation to harm to the animals themselves and to future generations of humans).

168  The Grounds of Political Legitimacy Because political judgments depend on empirical and normative premises, a requirement to politically defer might involve epistemic and moral deference. Epistemic deference in politically relevant matters is deference about what to believe regarding some politically relevant empirical premises. Moral deference in the political context is deference about what to believe about rele­vant normative premises and about what they imply is the right decision in a given situation. Political deference is deference to someone else’s judgment about what should be done in a given situation. Political deference includes moral deference if it includes deference on moral reasoning. But it need not: in some contexts, political deference will only involve deference regarding relevant empirical premises and what they imply, while the beliefs in relevant normative premises and what they imply are broadly shared. To illustrate, in the Covid example, when forming your own political judgment, you might take on board expert testimony on the threat posed by a disease that has the potential to spread exponentially. When you only defer epistemically, you don’t defer regarding the practical conclusion c that others might draw from politically relevant empirical and normative premises. When you defer politically, you defer regarding the practical conclusion c—­that another lockdown is needed, for example. Such political deference includes moral deference if your deference includes deference relating to rele­ vant normative premises and their practical implications. It doesn’t include moral deference if a judgment that another lockdown is needed only relies on normative premises that you also believe—­e.g. the normative premise that actions that result in large numbers of unnecessary deaths are wrong.

(b)  Is Deference OK? Philosophers tend to have quite different attitudes towards these different types of deference. Epistemic deference is often seen as unproblematic, required even for responsible epistemic agents (Lackey and Sosa 2006). Standard examples of epistemic deference focus on non-­political cases, however, such as deferring to a meteorologist in forming a belief about whether it will rain tomorrow. But even in a political context, epistemic deference is also often seen as unproblematic and potentially required for responsible citizens (e.g. van Wietmarschen 2019; Lillehammer 2021). This said, there is a considerable—­and still growing—­literature at the intersection of philosophy of science, public policy, and ethics, that warns against excessive trust in experts. One reason is that expert views may involve unacknowledged value

Political Deference  169 judgments either because such judgments are inevitably embedded in scientific theories or because of a social bias among experts (e.g. Longino 1990; Douglas 2009; Kitcher 2011; Pamuk 2021). The complexities of political life thus make epistemic deference in the political context less innocent than standard examples of epistemic deference suggest. Moral deference is widely seen as problematic (e.g. Nickel 2001; Hopkins 2007; Hills 2009; Howell 2014), although there are some notable exceptions (Driver 2006; Sliwa 2012; Enoch 2014b; McGrath 2020). The main arguments that have been put forward against moral deference can be summarized as follows. According to the first, moral action requires understanding (Nickel 2001; Hopkins 2007; Hills 2009). In the example I used above, if you don’t understand why eating meat is wrong, but simply abstain from eating meat because someone told you that it is wrong, your action is deficient as a moral action. The problem with moral deference on this view is that it bypasses understanding why an action is morally right or wrong and acting without moral understanding diminishes the moral worth of an action. Note that in cases of ordinary epistemic deference—­say when you defer to a meteorologist about the probability of rain—­it’s not thought that there is a problem if you don’t understand why it might rain. Many epistemologists even argue that it’s possible to acquire knowledge via testimony in ordinary empirical cases (Lackey and Sosa 2006). Most moral philosophers, by contrast, reject the idea that it is possible to acquire moral knowledge in this way.1 The second argument against moral deference is that moral action requires a reliable disposition to do the right thing (Howell 2014). The problem with moral deference on this view is that it bypasses moral virtue and the development of moral character. Interestingly, virtue epistemologists have argued that epistemic deference need not be a shortcut that bypasses epistemic virtue. To the contrary, taking on board reliable testimony, when it’s available, has been characterized and defended as an epistemic virtue (e.g. Ahlstrom-­ Vij 2015).

(c)  Scepticism about Political Deference While the literature on political deference in contemporary political philosophy is still quite limited, I think it’s fair to say that the standard view is that

1  Though see Hills (2009) and McGrath (2020).

170  The Grounds of Political Legitimacy political deference is also problematic.2 Given that there may be overlap between moral deference and political deference, as I highlighted earlier, do the arguments against moral deference also explain scepticism about political deference? I think they play a role, especially the concern with moral understanding. But the concern with political deference has less to do with the moral worth of political decisions than with the bindingness of those decisions. If equal political authoritativeness is the ground of political legitimacy, and presupposing a justificationist view of political legitimacy (see Chapter 5), then this involves a requirement that all citizens understand and accept the reasons in support of a particular decision. As we saw earlier (again in Chapter 5), relevant reasons might be substantive or procedural. The main concern with political deference thus is the tension between political deference and the equal political authoritativeness of the citizens. Darwall captures the thought well (2010: 278), in a passage we already encountered earlier: The basic premise underlying any successful justification of differential authority . . . is that we share a common basic authority to make claims of each other just by virtue of being persons. Or, as Rawls put the point, to be a person is to be a ‘self-­originating source of valid claims’.

On will-­based conceptions of political legitimacy, including Darwall’s, pol­it­ ical deference as I’ve defined it is never appropriate. If citizens are equally politically authoritative, then each citizen’s political judgment is in some fundamental sense equally valid. And if the political judgments of citizens are equally valid, then citizens can’t be required to defer to someone else’s pol­it­ ical judgment. Note that even on many will-­based conceptions, citizens might still be required to accept as legitimate a political decision they disagree with—­for example a decision by a democratic majority (Anderson et al. 2005). But this requirement stems from mutual accountability, as it might be embodied in democratic decision-­making. As such it is importantly distinct from what I call political deference here. Political deference, as I’m using the term, is deference to cognitive political authority, not honouring mutual accountability. A requirement to honour mutual accountability is compatible with the equal

2  Recent discussions of political deference, which endorse what I call the standard view, include van Wietmarschen (2019) and Lafont (2020); see also Estlund (2008: 104ff.). Lillehammer (2021) and Brinkmann (2022) are more positive about political deference.

Political Deference  171 political authoritativeness of all citizens. And that’s because a failure to ­honour mutual accountability would imply ranking one’s own authoritativeness above that of others. But a requirement to politically defer to others is not compatible. The standard will-­based view is thus that a requirement for pol­it­ical deference would be in tension with the equal political authoritativeness of the citizens.

(d)  From Epistemic Accountability to Political Deference I accept that political deference is incompatible with the equal political authoritativeness of all citizens. But we shouldn’t categorically rule out a requirement to politically defer in well-­ordered political deliberation on that basis, and the reason is epistemic accountability. In the rest of this chapter, my aim is to argue that epistemic accountability implies that well-­ordered pol­it­ ical deliberation might require political deference. On some belief-­based conceptions of political legitimacy, as we saw earlier, political deference is required from the citizens as the default response. Raz’ service conception is a prime example.3 But, as I argued in Chapters 4 and 6, given the challenging epistemic circumstances of politics, this can’t be the right view. If cognitive political authority is often elusive, then political deference can’t be the default response that’s required of the citizens. In unfavourable epistemic circumstances, legitimate political decision-­making must fall back on the political will as the ground of political legitimacy, and our account of well-­ordered political deliberation must be compatible with that. What we need, in other words, is a better understanding of when political deference is required and when we should not defer. Before I discuss the conditions under which political deference is required in the next section, it will be helpful to say a bit more about my overall argument in support of political deference. My argument parallels a well-­known argument in support of moral deference. This argument shows that moral deference is rationally and morally required if someone else has a superior moral track-­record on a particular issue or if there is other evidence that their moral judgment is superior to yours (Enoch 2014b). My aim is to show that political deference is similarly required if it is possible to establish that there is cognitive political authority—­a permission to make binding political decisions

3  See my discussion in Chapter 4.

172  The Grounds of Political Legitimacy based on decisive epistemic authority on what the right political decision is in a given situation. My argument is this. In a political context, epistemic accountability for action implies that the validity of contributions to political deliberation depends on what citizens have reason to believe about relevant empirical and normative premises, where what they have reason to believe might depend on testimony received. As we saw in the previous chapter, this implies that contributions to political deliberation are subject to epistemic norms. While well-­ ordered political deliberation depends on the satisfaction of all three types of norms, if there is a tension between what these norms recognize as a valid contribution, validity is then determined by epistemic norms, in the first instance. In favourable epistemic circumstances, in which well-­ordered political deliberation establishes that there is cognitive political authority, this gives everyone a reason to believe that the recommended decision is the right decision, as I’ll explain in more detail in the next section. And as we saw in Chapter 4, when there is cognitive political authority, this doesn’t just create a rational requirement to defer. Political deference is then also morally required. And that’s because if it’s possible to track what the right thing to do is in a context of high-­stakes political decisions, epistemic accountability entails answerability to others, not just to self. In Chapter 4, I used the bridge case to illustrate how the scope of epistemic accountability might cover answerability to others in a political context as well. Our epistemic accountability also explains why a requirement to politically defer does not compromise the legitimate authorship of political decisions. If it is possible to establish that there is epistemic authority on what the right decision is in a given situation, this creates a situation of epistemic inequality, in which not everyone’s political judgment is equally valid. And if citizens are not equally politically authoritative with regard to a particular political issue, political deference is not in tension with the legitimate authorship of political decisions. This argument from epistemic accountability in support of political deference is conditional on there being epistemic authority on a particular political question—­for example, on the question of whether a lockdown is needed in response to the spread of Covid-­19. As I argued earlier, we should not expect that the epistemic circumstances of politics are typically conducive to establishing cognitive political authority. And if it is not possible to establish such epistemic authority, there is no identifiable epistemic hierarchy in this context and the assumption that citizens are fundamentally equally authoritative remains plausible.

Political Deference  173 To be sure, even if it’s not possible to establish cognitive political authority, and if there is thus no case for political deference, there might still be ample scope for ordinary epistemic deference on politically relevant matters in political deliberation and decision-­making. If there is expertise on relevant empirical or normative premises, there might be considerable room for epi­stem­ic deference, even if the scope for political deference proper is limited.

8.2  When Is Political Deference Required? When is political deference required in well-­ordered political deliberation? We can answer this question with reference to the epistemic norms of pol­it­ ical deliberation that I introduced in Chapter 7. As you might recall, I argued that in contexts close to political decision-­ making, the relevant epistemic norms are the justified belief norm, the responsiveness norm, and the epistemic justice norm. Together, they imply that valid contributions to political deliberation must rest on empirical and normative premises that are justifiably believed, where what counts as a justified belief depends on procedural norms as well—­responsiveness, on the one hand, and epistemic justice, on the other. The responsiveness norm is particularly important for political deference. As I explained when I introduced the responsiveness norm, its demands depend on how participants in political deliberation are placed relative to each other. If it can be established that some participants in political de­lib­er­ation are epistemically superior, the responsiveness norm demands an ad­equate response to this. And what I want to argue in this section is that if it’s possible to establish that some participants in political deliberation enjoy cognitive political authority, then the adequate response is deference.

(a)  What Does Epistemic Authority Require? Because cognitive political authority depends on epistemic authority of the right kind, it helps to first get clearer on what (genuine) epistemic authority entails. There are two main views of epistemic authority, understood here as genuine epistemic authority, involving testimony from an epistemic superior. The first model is a pre-­emptive model, which parallels Joseph Raz’ view of

174  The Grounds of Political Legitimacy practical authority (see Zagzebski 2012).4 On this model, the right response to epistemic authority is to set aside your own reasons for belief. To illustrate the model with a non-­political example, if a financial advisor is a genuine expert, you should believe what they tell you is the best strategy for saving for your retirement and bracket your other reasons for belief concerning the merits of different strategies. The pre-­emptive model contrasts with an advice model, according to which epistemic authority merely adds to your reasons for belief (Lackey 2018). On this model, the right response to the financial expert’s expertise is to take their testimony as reason for belief and allow that to inform your reasoning about how best to save for retirement. The pre-­emptive view appears to have the strong advantage that it will, on the whole, lead you to form better beliefs than the advice view (Raz 1986: 68; Zagzebski 2012: 114f.). If you’re weighing up the testimony of an epistemic authority with other reasons for belief that you have, this will typically lead you to form less accurate beliefs than if you were to set aside your own ­reasons for belief. And the explanation is that epistemic authority, if it is genuine, will have considered whatever reasons for belief you have, but they also have access to further reasons, that anyone with less expertise lacks (Zagzebski 2016). Following Jennifer Lackey (2018: 232f.), I call this the track-­record argument in support of the pre-­emptive view. Consider the issue in the surveyor case that I introduced earlier. Your own assessment of the threat that Japanese knotweed poses to the property you’re keen to buy—­that it’s only at the bottom of the garden, for example—­will have been part of the surveyor’s assessment, too, but they have further reasons for believing that even a small infestation can quickly become a major threat. With genuine epistemic authorities, it thus looks as if setting aside your own reasons for belief is the right response, at least in cases where the authority’s claims do not appear obviously wrong.5 The pre-­emptive view might be implausibly strong, however. As Lackey (2018) has argued, experts can get things wrong, sometimes even outrageously so, in which case you should ignore their testimony and rely on your own reasoning. The pre-­emptive view not only fails to give you that option, Lackey argues, it even deprives you of the resources to assess the expert, given

4  See Brokos (2020) for a helpful recent discussion of different ways to conceptualize epistemic authority. 5  Nguyen (2021) makes a related point, namely that sometimes we have to trust the reasons of experts and that political deliberation suffers if it is governed by a transparency norm, introduced to ensure that we can make our own assessments. Of course, this is not to suggest that trust in experts can’t be misplaced. See also Anderson (2011) for a discussion of lay trust of experts.

Political Deference  175 that it asks you to set aside your own first-­order reasons. The advice view is better able to handle those cases. I agree with Lackey that a plausible conception of epistemic authority must accommodate the fact that anyone is fallible, and that even well-­established epistemic authorities can get things wrong, sometimes badly so. In a political context, this point is particularly important, given the epistemic circumstances of politics. Suppose a political decision-­maker announces that reliable experts have told them that ingesting a substance that is very widely known to be extremely toxic can cure a particular disease and that they thus recommend that everyone does so. No matter what you thought of that particular decision-­maker and their advisors, discounting this claim must be the right response in a scenario like this: you should not ingest a substance that is well known to be highly toxic. You’ll not only improve your track-­record, you might even save your life. A plausible account of how to respond to epistemic authority should thus not assume that epistemic authority is infallible. We can accommodate both the track-­record argument and the concern with the fallibility of epistemic authorities if we take a wide-­scope view of what genuine epistemic authority requires (see Bokros 2020: sect. 7). On that view, if you consider the epistemic authority genuine on a particular issue, you should set aside your own reasons for belief and defer to the authority. If you have doubts about their authoritativeness on this issue, however, then the wide-­scope view allows you to fall back on your own reasoning. The plausibility of this wide-­scope view is further strengthened if we recognize that setting aside your own reasons for belief isn’t just a requirement of the pre-­emptive model of epistemic authority, it’s also compatible with the advice model. The reason is that even on the advice model, if the testimony is from a genuine epistemic authority, not just from a source that you consider slightly better than you, then their testimony “screens off ” all your own ­reasons for belief on this particular issue. The pre-­emptive model of epistemic authority and the advice model thus converge in their recommendation in this limit case.6 We can conclude that in circumstances where you’re facing testimony from a genuine epistemic authority, the right response is to set aside your own ­reasons for belief and defer to the epistemic authority. As I’ll argue next, this understanding of how you should respond to epistemic authority supports my argument for political deference: in epistemic circumstances where it is possible to establish epistemic authority on what the right decision is, political 6  I thank Kevin Dorst for pointing this out to me; see also Dorst (forthcoming).

176  The Grounds of Political Legitimacy deference is the right response. What everyone has reason to believe about what the right decision is in those circumstances is determined by the epistemic authority’s testimony in well-­ordered political deliberation, and this supports a requirement to defer to their political judgment.

(b)  Responding to Cognitive Political Authority With this understanding of epistemic authority in place, we are now able to answer the question of what the responsiveness norm requires if there is testimony from decisive epistemic authority in relation to a particular political decision. Recall that the responsiveness norm says that the validity of contributions to political deliberation depends on whether confidence in the premises on which the contribution rests has been appropriately adjusted in response to contributions from other participants: Responsiveness norm:  everything else equal, A’s contribution c(pi) to political deliberation in context x is valid only if A is justified to believe pi even after appropriately adjusting their original confidence in pi in response to political disagreements or testimony concerning pi. As it’s stated, the responsiveness norm is a necessary condition for the validity of contributions; in circumstances where the norm applies, contributions that violate the norm are not valid. If the right response to epistemic authority is to set aside other reasons for belief and to defer to the epistemic authority, as we just saw, then testimony from epistemic authority undermines the justification for conflicting beliefs. This is to say, once testimony from epistemic authority is available, only contributions that appropriately respond to this testimony are valid. Conflicting contributions that may have been valid before the testimony was available will no longer be valid if there is a failure to respond to the testimony. Moreover, if there is decisive epistemic authority on what the right decision is in this situation, not just epistemic authority on individual premises, then opposing contributions will no longer be valid, and this explains the requirement to politically defer. To see this better, we can rephrase the point using the terminology I introduced in the context of my discussion of the norms of political deliberation. Suppose there is a contribution c*(p1, . . ., pn) to political deliberation that is backed by decisive epistemic authority. Less abstractly, suppose c* is the claim

Political Deference  177 that immediate lockdown is necessary to stop the further spread of Covid-­19, and this contribution depends on a range of premises, including the premise pi, that the disease is spreading out of control. Suppose that your original belief was not-­pi—­that the disease is under control—­and you thus didn’t think that lockdown was necessary. Given epistemic authority on pi, the responsiveness norm asks you to set aside your own reasons for believing not-­ pi and to defer to the epistemic authority with regard to pi. In addition, given that we’re assuming that the epistemic authority is de­cisive on what to do in this situation, this means that good practical reasoning based on epistemic authority on p1, . . ., pn leads to a uniquely justified contribution c*(p1, . . ., pn). If you lack that sort of epistemic authority, your de­lib­er­ation on what should be done will be based on a narrower set of rele­ vant premises (p1, . . ., pj). But your justification for belief in those premises, and your conclusion cʹ(p1, . . ., pj), is undermined by the testimony from ­epi­stem­ic authority c*(p1, . . ., pn), and this also undermines the validity of your original contribution. Responsiveness then requires that you set aside your own ­reasons (p1, . . ., pj) for believing that some political decision other than the one recommended by c* is the right one in this context. In other words, responsiveness supports political deference as no other contribution cʹ(p1, . . ., pj) will be valid in this context.

(c)  Conditions for Cognitive Political Authority So far, I’ve explained why cognitive political authority—­which is based on decisive epistemic authority on what the right decision is in a given context—­ requires political deference in well-­ordered political deliberation. Now we must clarify the conditions for cognitive political authority. What must be the case for there to be cognitive political authority in a given context, such that citizens could be required to politically defer? This is obviously a key question for the epistemic accountability conception of political legitimacy. But we already have in place the key elements we need to answer this question. Recall that in Chapter 4, when developing the epistemic under­deter­min­ ation objection against belief-­based conceptions of political legitimacy, I argued that there are three conditions that must be met for there to be cognitive political authority. These are the conditions that also determine a requirement to politically defer. Summarizing the earlier discussion, there is cognitive political authority when there is a unified and robust body of evidence (body of evidence

178  The Grounds of Political Legitimacy condition), when there is expertise on the main political question of what the right decision is (competence condition), and when it is possible to identify the expert view (identification condition). If any one of those conditions is not met, epistemic authority—­which may still be abundant on politically rele­ vant issues—­is not decisive and political deference is not required. But if the epistemic circumstances are favourable and all three conditions are met, then political deference is required. Let’s look at each condition in a bit more detail. If the body of evidence condition is met, and presupposing the justified belief norm, there is a unified and robust body of evidence that can support a set of justified beliefs in pol­it­ ical­ly relevant premises p1, . . ., pn. Even if that condition is met, there might then still be variations in what the citizens justifiably believe, due to variations in their epistemic circumstances. But the body of evidence condition rules out that those variations are a result of a fragmented body of evidence. For there to be cognitive political authority, there must be a unified and robust body of evidence that underpins the justification for belief in relevant premises p1, . . ., pn. Second, for there to be cognitive political authority, the relevant epistemic authority can’t be confined to individual premises on which contributions to political deliberation rest, but must cover all relevant premises p1, . . ., pn and what they imply. In other words, the competence condition says that decisive epistemic authority on what the right political decision is in a given context, is a uniquely valid contribution c(p1, . . ., pn) that is supported by good practical reasoning involving justified beliefs in p1, . . ., pn.7 The body of evidence condition adds to this that the relevant beliefs must be justified based on a unified and robust body of evidence. For a conclusion to be supported by good practical reasoning, this means, inter alia, that the contribution by the purported epistemic authority satisfies the responsiveness and epistemic justice norms. That is to say, a contribution by a purported epistemic authority will not be valid if it involves beliefs that would not be justified if there had been an adequate response to relevant dis­ agree­ment and testimony that isn’t biased by identity prejudice. For example, if some disagreements or testimony have been epistemically discounted because of the social identity of the participants, this undermines the validity of the contribution by the purported epistemic authority. Together with the 7 I introduced the general form of good reasoning norms and clarified its relationship with ­epi­stem­ic norms in Chapter 7.

Political Deference  179 body of evidence condition, these two norms help ensure that expertise relates to the question of what the right political decision is, not merely to the advancement of partisan interests. Finally, the identification condition says that for there to be cognitive pol­it­ ical authority, it must be possible to identify the uniquely valid contribution c*(p1, . . ., pn). For this condition to be met, there can’t be any significant expert disagreement on what the right decision is. If there is significant expert dis­ agree­ment on this question, there will be a plurality of valid claims c(p1, . . ., pn). In addition, it must be possible to identify the expert view, that is to say, it must be possible for participants in political deliberation to recognize that there is decisive epistemic authority. So the credentials can’t be esoteric, but must be widely accessible, and it must be evident that the expert view is not hostage to some arbitrary social interests.8 Combining all three conditions, we can say that it must be possible to identify c*(p1, . . ., pn) as the only permissible conclusion of good practical reasoning involving justified beliefs in a set of relevant premises p1, . . ., pn and those beliefs must be justified based on a unified and robust body of evidence and survive scrutiny by other participants in political deliberation. If all three conditions are met, there isn’t, then, any additional politically relevant evidence that could justify a divergent political judgment in relation to a particular political decision (body of evidence condition), and epistemic superiority in this matter can be established—­the competence and identification conditions are met. In Chapter 4, when discussing the epistemic underdetermination condition, I started explaining the difficulties that arise with meeting those conditions in the epistemic circumstances of politics. There can be no doubt that these are very demanding conditions. In many typical instances of political deliberation and political decision-­making, these conditions will thus not be satisfied, and political deference is not warranted as a result. I’ll return to this point in the next chapter, where I connect difficulties in meeting those conditions with the occurrence of normatively significant political disagreements. That discussion will give us further opportunity to engage with the demands of those conditions.

8  For helpful discussions of experts and expertise, see Goldman (2001, 2018) and Croce (2018). On expert disagreement, see also Coady (2006).

180  The Grounds of Political Legitimacy

(d)  The Deference Test for Cognitive Political Authority First, let me briefly mention another aspect of the connection between pol­it­ ical deference and cognitive political authority. Understanding the connection between cognitive political authority and political deference is helpful in two ways. First, it offers us a fuller explanation of epistemic accountability and, therefore, of how cognitive political authority can be a ground of pol­it­ ical legitimacy. Understanding that political deference is required when there is decisive epistemic authority on a certain political issue helps us understand how cognitive political authority has the capacity to make binding political decisions. The citizens are bound by cognitive political authority because epistemic accountability implies that if there is decisive epistemic authority, they are required to defer to the political judgment of those with epistemic authority and not rely on their own assessment of what the right decision is in this situation. Their own political judgments are not independently valid, contrary to what will-­based conceptions of political legitimacy claim. Second, understanding the relationship between cognitive political authority and political deference is also helpful for another reason: it helps us shed light on when cognitive political authority, and not the political will, is the ground of political legitimacy. We can capture the idea in what I call a deference test for cognitive political authority. The deference test is this: Deference test:  a person or a body of people A making a contribution c* to well-­ordered political deliberation hold cognitive political authority on c* if the other participants are required to defer to A in relation to c*. Note that this is only a test, useful to shed light on whether there is cognitive political authority on a particular issue. Whether there is cognitive political authority is not determined by political deference, but by decisive epistemic authority. But as decisive epistemic authority is also the reason why political deference might be required, asking whether political deference is required can be a helpful question to shed light on why cognitive political authority is the ground of legitimacy in those epistemic circumstances. So far in this chapter I’ve argued that political deference, understood as deference to the political judgment of others, can be required in the right epistemic circumstances. If the epistemic circumstances allow for decisive epistemic authority with regard to a particular decision, then the epistemic norms of political deliberation imply that conflicting political claims are not valid and deference is required.

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8.3  The Limits of Political Deference As political deference is only required if some fairly demanding epistemic conditions are met, it follows that we shouldn’t politically defer to others when those conditions aren’t met. If the body of evidence isn’t unified or robust, if epistemic authority is not decisive, or if it’s not possible to identify decisive epistemic authority, there is no requirement to politically defer. So one set of worries about political deference has its source in doubt about whether these conditions can ever be met, given the epistemic circumstances of politics. It might also be objected that there are weighty moral and political reasons against political deference, which my epistemic argument in support of political deference hasn’t considered. In this section, I discuss both sets of worries.

(a)  Epistemic Underdetermination Should we assume that cognitive political authority will always be epi­stem­ic­ al­ly underdetermined, given the epistemic circumstances of politics? I certainly think that epistemic underdetermination is the normal case. But I don’t think we should assume that it’s impossible to meet the conditions for cognitive political authority. To see this, let me respond to some key concerns in this regard. A first concern relates to the body of evidence condition. Given the complexity of political decision-­making, isn’t relevant evidence typically fragmented and difficult to share? I think the answer to this question is yes, and I’ll expand on this in the next chapter. But as the bridge case I introduced in Chapter 4 also highlights, the narrower the scope of a political problem that needs to be addressed, and the higher the stakes, the more likely it is that rele­ vant evidence is unified. I think some emergency scenarios are like that, and I’ve already discussed the climate crisis and the initial Covid-­19 outbreak as possible examples. A further worry concerns the competence condition. It might be objected that because political judgments about what the right political decision is in a given situation always involve normative premises, the competence condition can’t be met for political decisions that touch on controversial moral issues. As political decisions typically involve controversial moral issues—­perhaps in contrast to the fire case I introduced earlier—­there is no basis for a requirement to defer to the political judgments of others. Competence can thus only

182  The Grounds of Political Legitimacy be achieved in relation to empirical premises of political judgments, but not in relation to the overall conclusion about what the right decision is in a given situation.9 I agree that many political judgments rely on controversial normative premises and that political disagreements about these premises are such that there is no relevant expertise and, therefore, also no ground for a requirement to defer. But I don’t think this is true of all political disagreements. To see why not, let’s draw a distinction between purely moral disagreements in politics, which concern normative premises, and political disagreements that do not concern the normative premises as such, only the relevance of some normative premises in the context under consideration. I agree that there can’t be a competence-­based requirement to politically defer if political disagreements concern purely moral disagreements. Disagreements of this kind need to be resolved on the basis of the political will, rather than on the ground of cognitive political authority (see Chapter 9).10 But there are also political disagreements in which both sides accept some fundamental normative premises—­for example, that genocide is wrong—­or where there isn’t much scope for purely moral disagreements on the normative premise. A disagreement might then arise because of different judgments about whether that normative premise applies in a given context. In the genocide case, one side might deny that they’re engaging in genocide. I think that disagreements concerning how to respond to the initial Covid-­19 outbreak were also of this kind. The relevant normative premise—­that large numbers of unnecessary deaths should be avoided—­was widely shared, but the dis­agree­ ment concerned the question of whether the new Covid-­19 outbreak posed such a threat, or whether the lockdown that was advocated was the right response to that threat. In those cases, it’s more likely that the competence condition can be met if one side has more expertise on that kind of political problem than the other. A third type of epistemic difficulty relates to the identification condition. If it is unclear whether there is epistemic authority on the main political question, due to difficulties with gathering relevant evidence, achieving

9  I thank Regina Rini for pressing me on this point. 10  But as I argued earlier, in relation to the abortion example (Section 7.3), even if we allow that there is no moral expertise on controversial moral premises, the responsiveness norm might still require a response to the fact that there is a political disagreement on this issue. So well-­ordered pol­it­ ical deliberation might have an impact on the justification for those political beliefs in this way, even if it’s not via testimony.

Political Deference  183 competence (empirical and normative), or the identification of expertise, then political deference is not required, and it will be more appropriate to conclude that others are not epistemically superior in relation to the political question at stake. In light of this, it might be objected that ­ the wide-­scope reading of epistemic authority is too weak and that it has the consequence that political deference will never be required in the political context because it’s always possible to just reject others’ epistemic superiority. Discussions of weaponized scepticism as a tool of political manipulation put the problem into sharp relief: it might always be possible to insert some outlandish claims in political deliberation that cast doubt on otherwise well-­justified political judgments and on those making them (Rini 2021). Weaponized scepticism is a serious political problem that needs addressing. But I don’t think it undermines my argument for political deference. To see why, we need to take into account the role of ordinary epistemic deference on politically relevant matters. If a claim is outlandish—­introduced in political deliberation with manipulative intent, for example—­then it violates the justified belief norm. And if the contribution is not valid for that reason, it can’t be the basis for doubting the epistemic superiority of those who dispute the claim. If there is no reason to doubt cognitive political authority, then the wide-­ scope interpretation of epistemic authority still re­com­mends political deference. The wide-­scope interpretation of epistemic authority thus needn’t be too weak to support a requirement for political deference, while also offering the flexibility to accommodate the challenging epistemic circumstances of politics. In the next chapter, when I discuss political disagreements, I’ll return to some of these points. In the rest of this chapter, we need to address some additional worries about the appropriateness of political deference: even if political deference is epistemically warranted, could political deference have pernicious implications for well-­ordered political deliberation and legitimate political decision-­making? I see two main worries here, one being political in nature and the other moral. The political worry is: is there a slippery slope that starts with support for political deference but then leads to support for an authoritarian political regime? The moral worry concerns the responsibilities of political decision-­makers, whether it’s political leaders or ordinary citizens considering how to vote. Does political deference lead to problematic political ignorance and does it allow citizens and political decision-­makers to bypass their political responsibilities?

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(b)  Against Political Authoritarianism Let’s start by considering the worry that political deference, once allowed to play a role in political deliberation, triggers a slide into authoritarianism. This worry deserves to be taken very seriously, but it’s also overstated. The worry about authoritarianism arises because my defence of political deference highlights the limits of democratic legitimization and makes room for the possibility of political decisions that draw their legitimacy on grounds other than democratic pedigree.11 This defence of political deference in no way constitutes an argument for authoritarianism, however. My response has two prongs. One is to clarify how the argument for pol­it­ ical deference I’ve offered is not an argument for an authoritarian political culture. The other is to explain how an authoritarian political culture makes cognitive political authority less likely, thus undermining the case for political deference. My defence of political deference is in no way an argument for an authoritarian political culture. A first reason is that my argument only supports political deference on grounds of epistemic superiority with regard to the question of what the right decision is in a given situation, but not on other grounds. Authoritarian regimes typically seek to promote political deference on other grounds, for example, by demanding loyalty to political leaders, threatening violence to stifle dissent, or through the use of propaganda or other forms of political manipulation (e.g. Ben-­Ghiat 2020; Costello et al. 2022). But authoritarian rule that is not grounded in cognitive political authority is not supported by my account. For example, suppose an aspiring authoritarian political leader deploys misinformation and propaganda to gather support for political decisions that only benefit a small group of people, to the detriment of everyone else. Suppose they do so by claiming that while everyone else is corrupt, only their leadership promotes the true interests of the country, in an attempt to shut down any dissent and demand political deference from the citizens. Because such claims are not grounded in epistemic authority, they do not require political deference on my account. A second reason why my argument for political deference is not an argument for authoritarianism is that the requirement to politically defer in certain epistemic circumstances applies as much to political leaders as it applies to

11  Mittiga (2021) has a related argument about political legitimacy.

Political Deference  185 other participants in political deliberation. That is to say, while occasionally it’s political decision-­makers themselves who hold epistemic authority in relation to a particular decision, more often it’s other groups of people—­whether it’s experts in a narrow sense, or lay persons with relevant experience, or a group that is epistemically superior thanks to a wisdom-­of-­the-­crowds mechanism. If there are groups of people with relevant epistemic authority, then political leaders are required to defer and decide accordingly. In an authoritarian regime, by contrast, deference is normally required to the political leaders, not from the political leaders. That my argument doesn’t support a slide into an authoritarian political culture is only part of the story. The other, perhaps more important part is that an authoritarian political culture makes it more difficult to achieve and establish cognitive political authority than a democratic political culture. That part of the story relates to my earlier comments about the constructive function of well-­ordered political deliberation (Section 5.3). A democratic political culture encourages political participation, toleration of dissent, and public accountability. Political deliberation in a democratic political culture is an important mechanism for gathering evidence and providing the sort of scrutiny that can yield genuine epistemic authority and demask inappropriate reliance on claims to expertise.12 An authoritarian political culture, by contrast, tends to feature demands of loyalty to political leadership, potentially violent enforcement of conformity, and the use of propaganda and similar manipulation tactics. These features make it much harder to scrutinize claims to expertise and the evidence on which they are based. They also make it easier to politically instrumentalize false claims to expertise to mask vested political interests. While my argument for political deference implies that there are limits to the democratic legitimization of political decisions, it doesn’t support dismantling democratic institutions and undermining a democratic political culture. How do the features of democratic political culture help ensure that ex­pert­ ise stays within its proper bounds? First, they help ensure that political de­lib­ er­ ation and decision-­ making are adequately responsive to all available evidence. As Heather Douglas has also argued (2009, 2021), expert advice should be public, wherever possible, so that it can be scrutinized by other members of the public, including other experts. One of the challenges that the epistemic circumstances of politics create is that the evidential basis for pol­it­ ical deliberation and decision-­making is often fragmented, as we saw, such 12  On features of a democratic political culture, see Almond and Verba (1963) and Putnam (1993).

186  The Grounds of Political Legitimacy that it is difficult to assemble a sufficiently robust unified body of evidence. A democratic political culture facilitates the public scrutiny of expert advice, without which important evidential input might well be missed in political deliberation and decision-­making.13 Second, political participation, toleration of dissent, and public ac­count­ abil­ity also help to ensure that those claiming expertise in politically relevant matters stay within the limits of their competence. Those claiming expertise in politically relevant matters must be well informed about relevant research and strive to offer the best possible guidance, given the state of the art in rele­ vant fields. But in doing so, it can be challenging to stay within the bounds of what their competence allows and this puts political decision-­making at risk of unwarranted expert dominance. There are two potential types of problems here. The first is a potential for wrongful epistemic trespassing (Ballantyne 2019; DiPaolo 2021) in political matters—­of making claims about what political decisions should be made that overstep the boundaries of what their expertise supports. As I’ve already argued in Chapter 4, even very robust expertise on politically relevant premises need not entail expertise in relation to the main political question of what should be done. Recognizing the difference between expertise on politically relevant premises and what I’ve called decisive epistemic authority is thus essential to avoid wrongful epistemic trespassing. Unwarranted expert dom­ in­ance also results if potentially controversial normative or evaluative claims are bundled up with expert views (Douglas 2009; Pamuk 2021). In a democratic political culture, it will be possible to draw to light both kinds of limitations of expert competence, which will ensure that any claims to expertise stay within their appropriate bounds. In addition, in a political culture where political participation, toleration of dissent, and public accountability are suppressed or underdeveloped, it’s much easier to politically instrumentalize claims to expertise and use the cloak of (not genuine) epistemic authority to mask vested political interests. If claims to expertise are made in the pursuit of partisan political goals, they fail those to whom the recommended political decisions apply.14 A democratic political culture thus helps to keep a check on any tendencies to politically instrumentalize expertise in this way.

13  Kavanagh (2020) makes a parallel point in relation to China’s Covid-­19 management. 14  See also Douglas (2021: 442): “science advisors should never accept the abuse of the authority of science by politicians to say the opposite of what the scientific assessment reveals. To allow this would be to fail in their obligations to the public.”

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(c)  Problematic Political Ignorance What about the moral worry? Is political deference in tension with the cultivation of the political responsibilities of political decision-­makers—­whether it’s political leaders or ordinary citizens considering voting? The core of this worry can be illustrated echoing a discussion in the literature on moral deference, which highlights the possibility of problematic moral ignorance (e.g. Sliwa 2012). Moral ignorance is problematic if moral deference is used as a shortcut to avoid moral responsibility. Acting morally is everyone’s moral responsibility, and we cannot avoid that responsibility by failing to develop our moral knowledge and resort to deferring to others instead. Not honouring that responsibility makes us deficient moral agents. Consider the case of someone who, when asked why they rescued a child from the pond, answers, with a shoulder shrug, that they did it because someone else told them to do so. This sort of moral ignorance is clearly problematic. If political deference—­whether by political leaders or by ordinary citizens—­ were used as a shortcut to avoid political responsibilities, that would be a problem, too. Cases of politically problematic ignorance often occur in relation to discrimination, for example in relation to race (Mills 2007). Such politically problematic ignorance about a politically pressing issue might arise from deference to alleged experts who lack proper insight into the problem.15 Or it might arise even from deference to genuine expertise if deference is used as a means to disengage and avoid political responsibility for the problem (Táíwò 2022). Does political deference as I’ve defended it invite this sort of abdication of political responsibility? I don’t think so. Consider, first, the case of political office holders who are tasked with making or proposing political decisions. Given their epistemic accountability, political office holders have a responsibility to establish when deference to those with more expertise is called for and when it is not. They can’t get round this responsibility by deferring to those claiming expertise when the epistemic circumstances are not favourable for establishing epistemic authority and thus do not require political deference. Their political responsibility, in this case, lies in recognizing that the decision-­ making problem is epistemically underdetermined. Similarly, if there is decisive epistemic authority on a political issue, recommending a particular set of decisions, then their epistemic accountability requires that they

15  See also Lafont (2020: 83ff.) on problems arising with “expertocratic shortcuts.”

188  The Grounds of Political Legitimacy defer and take action. So political office holders can’t avoid responsibility in this case either. Recognizing when it’s appropriate to defer—­and when it’s not—­is a key responsibility that they have, grounded in their epistemic accountability. What about the case of citizens considering voting and participating in political deliberation in the run-­up to a vote? They also face the question of when it’s appropriate to politically defer and when it is not, as argued above, and that’s an important political responsibility. This said, we have to be careful not to push this point too far. Unlike political office holders, whose job it is to make or propose political decisions, it must be permissible for ordinary citizens to take a passive stance towards at least some political decisions, as active political participation might stand in conflict with other life goals and values. Their political responsibility can’t extend to always being informed on pol­it­ ical matters, and is thus limited to when they choose to contribute to political deliberation. In addition, how much of a responsibility individual voters have in this regard depends on whether we’re considering contexts of political de­lib­er­ ation close to political decision-­making or not. As you might recall, I’ve argued in Chapter 7 that in political deliberation at large, epistemic norms should be weaker than in contexts close to political decision-­ making. Responsibilities need not be the same for everyday social media contributions that aren’t necessarily tied to any particular political decisions as for contributions that aim to justify a particular political decision—­e.g. a vote in an election—­especially for contributions that have a lot of influence. If contributions can be valid even if they don’t satisfy a justified belief norm, then this weakens responsibility considerably—­validity will then largely be determined on grounds of standing, not on epistemic grounds (see the next chapter). If citizens consider contributing in deliberative contexts close to political decision-­ making, however, then they’re epistemically accountable, which increases their political responsibility. In those contexts, they can’t just appeal to a right to participate, they must also shoulder the additional responsibility of reasoning well on rele­vant matters, including of responding adequately to available evidence and expertise. In this section, I’ve discussed worries about a requirement to politically defer, both in relation to the epistemic circumstances of politics and in relation to worries of a political and moral kind. With regard to the former, I’ve argued that the epistemic circumstances of politics may sometimes support a requirement to politically defer. With regard to the latter, I’ve argued that my argument for political deference in well-­ ordered political deliberation is

Political Deference  189 neither an argument for an authoritarian political culture nor a shortcut to avoiding political responsibility. The opposite is, in fact, the case. An authoritarian political culture makes it more difficult for the conditions of warranted political deference to be met. And an important element of the political responsibilities of both political office holders and politically active citizens is to discern when political deference is required and when it is not.

9 Responding to Political Disagreements The previous chapter argued in support of political deference. But it also highlighted the limits of a requirement to politically defer. In the typical epi­ stem­ic circumstances of politics, we should not expect even well-­ordered political deliberation to generate a uniquely justified political decision. In Part I of the book, I described the situation as one where political decision-­making faces a plurality of valid, but conflicting claims about what should be done. We are now able to make this more precise. This chapter examines the impli­ cations of political disagreements for legitimate political decision-­making. I focus on political disagreements that persist even in well-­ordered political deliberation. I argue that such political disagreements are normatively signifi­ cant. They necessitate a shift away from justification on the basis of cognitive political authority and towards a more voluntarist mode of political justifica­ tion. One option that I discuss in this chapter is democratic justification.

9.1  Political Disagreements What are political disagreements about? Getting clearer on this question will be helpful before we can address the normative significance of political dis­ agree­ments that might arise in well-­ordered political deliberation.

(a)  Fact-­Dependent Political Disagreements Characterized quite generally, disagreements are a constellation of attitudes that not only are incompatible but in some sense can’t be jointly held.1 Relevant attitudes might be conative—­such as desires—­or cognitive—­such as beliefs. Consider a disagreement involving belief. If you express the belief that the prime minister has resigned and I express a belief that the prime minister has not resigned, we have a doxastic disagreement. Assuming that belief aims 1  See Dreier (2009).

The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0009

Responding To Political Disagreements  191 at truth, the two attitudes cannot be jointly held by us: the prime minister has either resigned or not, and so only one of our beliefs can be true. But not all constellations of incompatible attitudes constitute disagreements. For ex­ample, you might hold “I want to go to the opera” and I might hold “I don’t want to go to the opera”. These attitudes can be jointly held by us and there is thus no disagreement here—­we just have different desires. Political disagreements are constellations of attitudes that can’t be jointly held by the citizens because the attitudes are about political decisions—­ decisions that are made on behalf of everyone. They are attitudes towards political candidates or towards political decisions such as the following. Should the minimum wage be increased? Should a national health system be created or reformed or is this not needed? Should abortion be legal within the first three months of pregnancy? Should borders be more open to refugees? As political decisions affect everyone, if the citizens’ attitudes towards a pol­it­ ical decision come apart in political deliberation, there is a political disagreement. The attitudes that drive political disagreements may be cognitive or conative—­they often involve political beliefs, but need not. To clarify the issue, let’s draw a distinction between fact-­dependent and fact-­independent disagreements. Doxastic disagreements, such as our disagreement about whether the prime minister has resigned, are fact-­dependent. Such dis­agree­ ments are about which proposition is made true by the facts: has the prime minister resigned or not? Some disagreements about taste, by contrast, are good examples for fact-­independent disagreements. Suppose you claim that a cake we’re sharing is delicious. I disagree. This disagreement, I take it, is not fact-­dependent.2 Political disagreements are ultimately practical disagreements. They are disagreements about what should be done. Practical disagreements, in gen­ eral, as well as political disagreements, more specifically, can be either fact-­ dependent or fact-­independent. To illustrate, recall the example of a planned new town council building that I introduced in Chapter 5. The citizens have differences of opinion about the proposed design arising from different tastes. That’s a fact-­independent political disagreement, and, as such, it doesn’t track a fact of the matter: the disagreement is the result of some citizens liking the design and others not liking it. Because they do not involve contested

2  Although not everyone would agree that disagreements about taste are fact-­independent; see Marques and García-­Carpintero (2014).

192  The Grounds of Political Legitimacy theoretical attitudes like belief, we can also call such fact-­independent ­dis­agree­ments purely practical. Some of our political disagreements are no doubt purely practical. They have their origin in what I called value underdetermination in Section  5.3. Such disagreements will be driven by differences in values, or differences in how values are weighted, that do not track matters of fact. As the town coun­ cil building example illustrates, some aesthetic values are a case in point. But other value differences might also be significant in politics. For example, ­sentimental values concerning places or ways of living may be an important driver in at least some political disagreements, with different parties attached to different sentimental values, or attributing different weights to such values. I’d also expect diverging prudential values, for example related to risk-­taking, to be a significant source of political disagreements. Most political disagreements, however, are fact-­ dependent, I contend. They’re not purely practical disagreements and instead involve disagreements about issues where there is a fact of the matter. Importantly, the relevant facts might concern normative or empirical premises of contributions to political deliberation.3 Consider the example of a new health policy that, if introduced, where to improve the health status of the poorest 20% in a political commu­ nity. A disagreement over this policy might arise in political deliberation because the parties involved disagree about whether the policy does, in fact, increase the health status of the poor (an empirical premise) or about whether or not increasing the health status of the poor would be a good reason for implementing this policy (a normative premise). In what follows, I focus primarily on such fact-­dependent political dis­ agree­ments. I don’t want to deny that some political disagreements are purely practical. But the possibility of purely practical political disagreements shouldn’t lead us to neglect the much more common occurrence of political disagreements that originate in attempts to track some facts that pertain to the political decision under consideration. If we neglect the fact-­dependence of our political disagreements, we underestimate the normative challenge that political disagreements pose and misapprehend the normative concern with political legitimacy.

3  My interpretation of fact-­dependent disagreements differs from that of Kappel (2017) in this respect, but there are important parallels to the argument he presents in that paper.

Responding To Political Disagreements  193

(b)  Origins of Political Disagreements Political disagreements can occur and persist even if political deliberation is well ordered. Recall that well-­ordered political deliberation is deliberation that satisfies participation norms and norms of practical reasoning, including epistemic norms. Epistemic norms specify that valid contributions to political deliberation must rest on premises that are justifiably believed, where what counts as a justified belief also depends on how the citizens respond to each other’s contributions. There are two explanations for the possibility of persistent political dis­ agree­ments. A first explanation is value underdetermination. Purely practical political disagreements might arise among those with standing to contribute to political deliberation (see Chapter 5). The explanation for persisting fact-­ dependent political disagreements lies in the epistemic circumstances of pol­ it­ics that I introduced in Chapter 4 and further discussed in the previous chapter. My focus in those two chapters was on showing how the epistemic circumstances of politics impact on the possibility of establishing cognitive political authority. Those same epistemic circumstances also explain how even well-­ ordered political deliberation can generate persistent fact-­ dependent political disagreements—­ and often does. The origin of those political disagreements, in other words, lies in the epistemic under­deter­min­ ation of political deliberation and political decision-­making. Let’s dwell on the origins of fact-­dependent political disagreements for a bit longer. A first explanation for the occurrence and persistence of fact-­ dependent political disagreements, even in well-­ordered political de­lib­er­ ation, is that many of our political disagreements arise from the opacity of the evidential basis of many of our political judgments. Sharing relevant evidence is often difficult, leading to violations of the body of evidence condition. If political deliberation were to take place in an environment in which evidence is readily available and readily shared, such that all citizens can deliberate on the basis of the same body of evidence, we should expect greater convergence in political opinion. But political deliberation is often hampered by the full disclosure of relevant evidence—­not just because of strategic reasons, but because of difficulties in accessing and sharing relevant evidence.4

4  In terms introduced by Lackey (2010), even if citizens are cognitive peers, which they might or might not be, they often aren’t “evidential peers.”

194  The Grounds of Political Legitimacy There are two main reasons why sharing evidence can be difficult.5 The first is that politically relevant evidence—­in relation to both empirical and norma­ tive premises—­is often very complex, too complex to share and aggregate in a coherent body. As already discussed in Chapter 4, public controversies involve data gathered for many different purposes and at different levels of abstrac­ tion, and the data will be analysed from the point of view of many different scientific disciplines and other perspectives. They also importantly draw on the personal experiences of people in very different circumstances. We should thus expect that the evidence that bears on political decision-­making is very hard, if not impossible, to share fully. A second difficulty with sharing evidence is that our political beliefs form over time and this makes the evidential basis on which they were formed hard to track and share. Our political beliefs are often shaped in subtle ways by the environment in which we grew up, different kinds of education we’ve received, as well as our personal experiences. Similarly, different social contexts—­ cultural, professional, or recreational—­ will embed different background assumptions in us that are often difficult to access and spell out. As I mentioned in my earlier discussion of the body of evidence condition (Chapter 4), standpoint epistemologists offer us a good explanation for why the evidential basis of at least some of our political beliefs is often both too complex and too deeply sedimented to be easily shared. And the explanation is that our epistemic resources and capacities are dependent on our social sit­ uatedness. If at least some of the evidence for the premises on which political deliberation rests is relative to social standpoints, then it might be difficult to unify politically relevant evidence. If politically relevant evidence is difficult to share, then we should expect persistent disagreements even in well-­ordered political deliberation. Conflicting contributions could be justifiably based on different bodies of evidence, making it difficult for political deliberation to identify a uniquely justified political decision. We should also expect fact-­dependent political disagreements to occur in well-­ordered political deliberation if competence is only partial (competence condition) and if there is scope for conflicting judgments about who holds relevant expertise (identification condition). As already discussed, for many political issues, expertise will be incomplete, relating only to individual prem­ ises on which contributions to political deliberation rest, without covering the political question of what the right political decision is in a given situation. If 5  I’m drawing on my discussion in Peter (2013b) here, and the sources I cited there.

Responding To Political Disagreements  195 the available expertise tends to be incomplete, we should expect political disagreements even in well-­ordered political deliberation. The citizens’ well-­ justified, but conflicting beliefs in politically relevant premises will lead them to different conclusions about what the right political decision is in a given context. For example, suppose there is a political disagreement concerning metal detectors in schools. There will be a whole range of expertise that bears on this issue, including pedagogical expertise in relation to the learning environ­ ment, sociological expertise on youth violence, public health expertise on the harms of a shooting, etc. Such expertise will justify a range of politically rele­ vant beliefs, related to both normative and empirical premises, which are likely to support conflicting views on whether metal detectors are needed. Procedural epistemic norms might soften the edges of some of those ­dis­agree­ments, but we should not expect disagreements to disappear under those epistemic circumstances. An aspect of the problem of incomplete expertise is that different bodies of expertise often rely on different sets of social and moral values. And by this I don’t just mean that experts might be committed to different moral and religious views, although that may also be a factor. As I’ve already highlighted a few times, scientific belief systems themselves involve social and moral values (e.g. Longino 1990; Douglas 2009; Kitcher 2011; Pamuk 2021), and these values shape the contributions that scientific advisors make to political de­lib­er­ation. If the values that are involved in different bodies of expertise do not align for different groups of participants, and if there is no overarching evidence on which values are the right ones, there will be valid political dis­agree­ments on the question of what to do, originat­ ing from divergent normative beliefs or from hidden normative premises in different bodies of expertise. Finally, political disagreements might also arise in well-­ordered political deliberation if there is a lack of (shared) evidence about which system for generating political beliefs is ultimately the right one. We can shed light on this identification problem by following Alvin Goldman, who argues that even if there were such a system—­call it E*—it doesn’t follow that we have the evidence that would justify using it. To the contrary, we may be justified to use less than perfect systems E or Eʹ. As Goldman explains: In general, it doesn’t follow from the truth of an arbitrary position P that everybody or anybody is justified in believing P.  Some truths are hidden; they don’t automatically generate evidence of their truthfulness to populations,

196  The Grounds of Political Legitimacy or any populations. Gaining epistemic access to them may be difficult and problematic. Truths concerning E-­systems are likely to be in this boat.6

This problem is exacerbated as we shouldn’t expect that there is a unique sys­ tem for generating well-­justified political beliefs, given that political decision-­ making concerns a broad set of issues. To the extent that there is a uniquely valid contribution to political deliberation on a particular issue, this is more likely to be the result of a convergence across different belief systems, such that different belief systems end up justifying political beliefs that support the same conclusion about what should be done in given circumstances. But such convergence is only likely in very favourable epistemic circumstances, and we shouldn’t expect the normal epistemic circumstances of politics to be as favourable. As a result, we should expect that different belief systems justify different political beliefs and, we should not expect procedural epistemic norms to eliminate those disagreements.7 In sum, political disagreements need not be a sign of political deliberation that is not well ordered. Both purely practical political disagreements and fact-­dependent political disagreements can persist even in well-­ordered pol­it­ ical deliberation. The epistemic circumstances of politics make fact-­dependent political disagreements likely, even if all contributions satisfy a justified belief norm and without presupposing a violation of procedural epistemic norms. Given the possibility of persistent political disagreements even in well-­ ordered political deliberation, we now need to consider how such political disagreements bear on political justification.

9.2  Political Disagreements and Political Justification Political disagreements that persist in well-­ordered political deliberation are normatively significant as they undermine cognitive political authority as a 6  Goldman (2010: 196f.). Goldman (2010: 201) describes the resulting position, which he calls “objectivity-­based relativism,” as follows: “There is a uniquely correct E-­system that governs the ob­ject­ive justifiedness and unjustifiedness of people’s doxastic attitudes. However, people occupy dif­ ferent evidential positions vis-­a-­vis this system and other candidate E-­systems. Hence, the objective justificational status of different people vis-­a-­vis different E-­systems is varied rather than uniform. Some people are objectively justified in believing certain E-­norms and E-­systems to be correct; others are objectively justified in believing other E-­norms and E-­systems to be correct. Similarly for attitudes other than full belief toward E-­norm-­related propositions.” 7  To add a note of clarification, my characterization of the origins of political disagreements is compatible with, but not committed to, some form of epistemic permissivism (see e.g. Schoenfield 2014; Rowland and Simpson 2021; Pettigrew 2022). We should expect fact-­dependent political dis­ agree­ments even if the evidence is not permissive.

Responding To Political Disagreements  197 ground of legitimate political decision-­making. In this section, my aim is to explain legitimate political decision-­making in circumstances where there are normatively significant political disagreements. The solution to this problem that I advocate, borrowing from the voluntarist line of thought, is that pol­it­ ical legitimacy depends on how political justification adjudicates between the plurality of valid claims in those circumstances.8 In the final section of this chapter, I consider democratic decision-­making as a possible response to political disagreements.

(a)  Normatively Significant Political Disagreements An important feature of the view that I’m developing is that how political deliberation connects to legitimate political decision-­making depends on the epistemic circumstances. In favourable epistemic circumstances, well-­ordered political deliberation will identify a uniquely justified political decision, which implies that the citizens are required to politically defer (Chapter 8). We now need to consider the—­likely—­scenario in which even well-­ordered political deliberation does not lead to a uniquely justified political decision. Recall that a valid contribution to political deliberation is a contribution—­a claim about what should be done—­from someone with standing that is sup­ ported by good reasoning, resting on premises that are justifiably believed even after engaging in well-­ordered political deliberation. If well-­ordered political deliberation fails to identify a uniquely valid decision, there will be a plurality of valid claims about what should be done. If there is a plurality of valid claims, then political decision-­making that only responds to some of those valid contributions and not to others lacks justification and hence legitimacy. To illustrate the problem, consider the following fact-­dependent disagree­ ment. Suppose one group of citizens argues that a new health policy should be adopted because it increases the health status of the poor, taking that empirical fact as a reason in favour of the policy. Suppose a second group of citizens agrees that if the policy were to increase the health status of the poor, this would be a reason to adopt the policy, but they disagree that the proposed policy will do so. The contribution we’re considering thus depends on two premises: the first is the normative premise that increasing the health status of the poor is a good reason for a new health policy. The second is an empirical 8  See also Waldron (1999) for a related line of argument.

198  The Grounds of Political Legitimacy premise concerning the effects of the proposed policy. As I’ve described it, this fact-­dependent disagreement is about the empirical premise, but my argument will be the same if the disagreement concerns the normative premise. In a situation like the one I’ve just described, if a decision were to be made, that decision would be justified in the judgment of one group of citizens, but not in the judgment of the others. We can also say, it would be justified to one group but not to the other. If deliberation is well ordered, it is not the case that one group of citizens is making an invalid contribution and should be defer­ ring to the other group. For example, it is not the case that one group has failed to adequately respond to available testimony, as required by the respon­ siveness norm. If deliberation is well ordered, yet fact-­dependent political disagreements persist in relation to a particular decision due to epistemic underdetermination, then it’s not possible to justify any one political decision to all citizens in this case. The situation is similar for political disagreements that arise from value underdetermination. Political disagreements that persist in well-­ordered political deliberation, either due to epistemic underdetermination or due to value under­deter­min­ ation, are normatively significant. They are normatively significant because they involve valid, but incompatible political claims and this has an impact on the justification of political decisions. Political disagreements that only persist in political deliberation that is not well ordered—­that is to say, that violates some of the relevant norms—­are not normatively significant, by contrast, because they will involve political claims that are not valid.9

(b)  Voluntarism in Political Justification If there are normatively significant disagreements, a further justificatory step is needed to secure political legitimacy. What would that further step be? In Chapter 5, I described it as a shift to the political will as a secondary ground of political legitimacy, necessary in circumstances where there is no cognitive political authority. We are now in a position to describe this shift in more precise terms. As we saw in the previous chapter, in epistemic circumstances where there is cognitive political authority and where, as a result, there is a requirement to 9  As a reminder: I’m focusing on contexts close to political decision-­making here, allowing that in other contexts of political deliberation, weaker epistemic norms apply (see Chapter 7).

Responding To Political Disagreements  199 politically defer, the permission to make binding political decisions has its ground in the evidence-­relative ought. When the epistemic circumstances of political decision-­making are such that there are persistent fact-­dependent political disagreements in well-­ordered political deliberation, then there is no decisive evidence-­relative ought that could support a permission to make binding political decisions. In purely practical political disagreements, too, any potential political decision that is affected by such a disagreement is justi­ fied to some citizens and not justified to others, creating a problem of political legitimacy. To the extent that there is a permission to make binding political decisions in those circumstances, it must be grounded differently. If there are normatively significant political disagreements of either type, political justification can’t rely on epistemic accountability, and there is no cognitive political authority that could legitimately settle political decision-­ making. Instead, legitimate political decision-­making must be settled on the basis of mutual accountability: political decisions are legitimate, only if they are justified in the political judgment of everyone with standing, as long as they satisfy norms of practical reasoning. The ground of political legitimacy, in those circumstances, is the political will, suitably understood. That is to say that the permission to make binding political decisions derives from the practical ought (see Chapter 1), re-­ interpreted to accommodate epistemic accountability. In Chapter 2, I inter­ preted will-­based conceptions as being based on the practical ought—­the citizens’ own judgment about what should be done, given their doxastic state. As we saw in Chapter 7, well-­ordered political deliberation might challenge the doxastic states of citizens when they enter political deliberation. Their epistemic accountability explains why such challenges are appropriate. In favourable epistemic circumstances, their epistemic accountability underpins a requirement to politically defer. When it’s not possible to establish cognitive political authority, by contrast, the citizens can only be bound by their own—­ well-­reasoned—­judgment about what should be done in a given situation. Note that even in those circumstances, epistemic norms still apply in well-­ ordered political deliberation. They are not decisive for political decision-­ making, however, because the evidence-­relative ought is either epistemically underdetermined or not applicable (because the political disagreement is purely practical). In those circumstances, it’s the practical ought, suitably understood, rather than the evidence-­relative ought that supports legitimate political decision-­making. The point I want to make can be illustrated by returning to the health example I used earlier. Consider the situation, first, from the perspective of

200  The Grounds of Political Legitimacy the group of citizens that argues that a new health policy should be adopted because it increases the health status of the poor, taking that empirical fact as a reason in favour of the policy. From their point of view, if that health policy were implemented, it would be justified. They hold, and their contribution stands after well-­ordered political deliberation, that the health policy should be adopted because it’s supported by what they take to be relevant reasons. In explaining why a decision to adopt the policy would be binding for them, we can appeal to their accountability: they recognize the validity of the claim that the health policy should be adopted and that explains both why, from their point of view, there is a permission to make that decision and why they would be bound to obey. Given that well-­ordered political deliberation has resulted in a normatively significant disagreement on this issue, while adopting the health policy would be justified to one group of citizens, it wouldn’t be justified to the other. And without a further justificatory step, the decision wouldn’t be legitimate for that reason. The second group of citizens could object that there are insuffi­ cient grounds for a permission to make that decision and that the decision is not binding for them as they don’t recognize the validity of the claim that the health policy should be adopted. To be fully justified, a political decision would have to be justified to everyone with standing, in terms compatible with well-­ordered political deliberation. And that means that the justification is based on the practical ought. What is the mechanism for legitimately settling political decision-­making in the voluntarist mode? In other words, how does mutual accountability translate to legitimate political decision-­making? In the final section of this chapter, I’ll offer a democratic answer to this question. Before turning to democratic legitimization, it will be helpful to say a bit more about political justification in the voluntarist mode, in general, as democracy is only one option, and not required by my argument.

(c)  Legitimate Decision-­Making in the Face of Disagreements Political justification in the voluntarist mode can take two main forms—­ substantive and procedural.10 Let’s consider substantive justification, first. If

10  See Chapter 1 (Section 1.3) for a discussion of the distinction between substantive and pro­ced­ ural justification, and how that distinctions cuts across my distinction between cognitive political authority and the political will as grounds of political legitimacy.

Responding To Political Disagreements  201 well-­ordered political deliberation identifies a normatively significant pol­it­ical disagreement on a particular issue, one option is to keep political de­lib­er­ation going and consider alternative political decisions—­decisions that are more likely to be supported by an agreement. In the health policy example that I considered earlier, if health policy X is rejected by some citizens, perhaps there is a revised policy Y that all groups of citizens consider justified and that would be legitimate on this ground. Importantly, such an agreement need not stem from a recognition that health policy Y is the right political decision—­the decision warranted by the normative facts in this context. Instead, health policy Y might be a com­prom­ ise among the citizens, one that reflects an agreement reached through purely practical reasoning. If well-­ordered political deliberation identifies an alterna­ tive course of action that all citizens can accept as justified, that agreement can be a ground of legitimacy. The practical ought then explains why there might be a permission to make that particular decision and why the citizens are bound to obey. Also note that substantive justification need not require that the citizens agree on the reasons for which one course of action should be favoured rather than the other. Justification can be achieved if there is convergence among the citizens on what health policy—­if any—­should be adopted. This way of understanding substantive political justification is consistent with what Cass Sunstein (1995) has called incompletely theorized agreements and with what Gerald Gaus (2011a) has called real public reason. It contrasts with a Rawlsian understanding of political justification, which is based on shared reasons (Rawls 1993; Quong 2011).11 A convergence approach is less demanding than a consensus approach. But in diverse societies we should expect even the set of such incompletely the­or­ ized agreements to be fairly small and likely too small to do much justifica­ tory work. Too many political decisions might end up unjustified on a substantive approach to political justification, leading to political paralysis. While the epistemic accountability conception of political legitimacy is thus compatible with a substantive solution to the legitimacy problem raised by normatively significant disagreements, I think that a procedural solution is more promising. On a procedural approach, political decisions receive their justification from a decision-­making procedure that the citizens can hold themselves mutually accountable to, such that any decision made in this way 11 For a recent defence of this way of understanding political justification, see Vallier and Muldoon (2021).

202  The Grounds of Political Legitimacy will be binding for them. In the health policy example, on a procedural approach, the legitimate way to resolve the political disagreement is to make a decision by relying on a legitimacy-­conferring decision-­making procedure. The procedure might govern decision-­making directly (as in a referendum or similar procedure) or it might govern the appointment of political office hold­ ers, who are mandated to make such decisions on behalf of the citizens. What justifies one such procedure rather than another? That’s an important but difficult question for procedural theories of political justification.12 There are two different options here. The first is that a decision-­making procedure is supported by actual agreement (which might be tacit), for example as realized in a political constitution. The second is by offering a hypothetical argument which aims to show that a particular decision-­making procedure constitutes a response to persistent disagreements that is compatible with mutual account­ ability as the aim of political justification. Such an argument might aim to show that democratic decision-­making procedures are well suited—­and per­ haps uniquely suited—­to respect the mutual accountability of all citizens (see e.g. Kolodny 2014a, 2014b; Viehoff 2014).13 Democratic justification through majority voting (on political decisions or on political representatives with a mandate to decide on behalf of the citizens) is certainly the most prominent—­and empirically relevant—­example of pro­ ced­ural justification and I’ll explore it further in the final section of this chap­ ter. But I want to highlight that while the argument I’ve developed in this book supports an important role for democratic decision-­making, it does not rule out other candidates for procedural justification. Procedural justification involving sortition, in particular, may be a promising alternative to more standard democratic procedures (see e.g. Guerrero 2014; Landemore 2020). In this section, I’ve argued that political disagreements that persist in well-­ ordered political deliberation are normatively significant disagreements. They are normatively significant because they make a difference to the justification of political decisions. If there is a normatively significant political disagree­ ment, legitimate political decision-­making has to respond to this disagree­ ment, as failing to respond to the disagreement while choosing one way rather than another would entail that the decision remains unjustified to the oppos­ ing side and hence not politically legitimate. Responses to a normatively 12  See the discussion that followed the publication of Waldron’s democratic proceduralism—­e.g. Estlund (2000). Because the argument I’m presenting in the book is not committed to any particular solution—­procedural or substantive—­it can avoid confronting the problem that affects Waldron’s proposal. 13  But see the critical discussions of this idea in Wall (2007) and Viehoff (2019).

Responding To Political Disagreements  203 significant disagreement might involve seeking a substantively justified alternative, or relying on a decision-­making procedure to resolve the impasse. I’ve argued that the latter might be more promising, and I further explore pro­ced­ural justification in the next section.

9.3  Why Democracy? One possible response to normatively significant political disagreements is to seek democratic legitimization for political decisions, and I consider this response in this section. Democratic legitimization is achieved through regu­ lar general elections and, possibly, referenda, in which citizens have an equal right to vote and where voting is embedded in a democratic political culture. In other words, democratic legitimization doesn’t have to be direct—­through a democratic decision on a particular political issue. It can be indirect, through the election of democratic representatives who have permission to make political decisions on behalf of the citizens. The epistemic accountability conception supports democracy, but also holds that the legitimizing force of democratic decision-­ making is con­ strained by cognitive political authority, when it is available. This way of thinking about the normative role of democratic decision-­making differs from more commonly advocated arguments for democracy. I call it a negative epistemic argument for democracy.

(a)  The Negative Epistemic Argument for Democracy In a nutshell, the negative epistemic argument supports democratic decision-­ making—­grounded on the equal political authoritativeness of the citizens—­as a source of legitimacy in circumstances where there is no cognitive political authority and where, instead, there are normatively significant political dis­ agree­ments. Democratic decision-­making, as a way of reflecting the political will, is a secondary ground of political legitimacy in circumstances in which cognitive political authority is not available. This negative epistemic argument for democracy contrasts with the positive argument for democracy offered by many epistemic democrats ­ (e.g.  Landemore 2013; Goodin and Spiekermann 2019). That argument is premised on the instrumental epistemic benefits of democratic procedures. It  also contrasts with the moral argument premised on the equal political

204  The Grounds of Political Legitimacy authoritativeness of the citizens that is offered by defenders of will-­based conceptions of political legitimacy (e.g. Gutmann and Thompson 1996, 2004; Christiano 2008; Pettit 2012; Kolodny 2014a, 2014b; Viehoff 2014; Lafont 2020). The argument for democracy that the epistemic accountability conception supports draws on epistemic considerations to identify the appropriate scope for democratic decision-­making. One of the problems with existing will-­based conceptions of democratic legitimacy is that they can’t appropriately address this question as they presuppose the citizen’s equal political authoritativeness on all political issues. Once we recognize, as I’ve argued, that citizens are not equally politically authoritative on all issues, the question comes appropriately into view. Against the background of the epistemic accountability conception, we can see that this question has to be, in the first instance, an epistemic question: under what epistemic circumstances is democratic decision-­making appropriate and thus potentially legitimate? In answering that question, one option is to argue, as I suggest in Chapter 4, that democracy’s legitimizing potential can be accounted for by a belief-­based conception of political legitimacy. That sort of positive epistemic argument aims to show that democratic procedures can be relied on to establish cognitive political authority, for example because of the CJT or because of the NTA. I’m sympathetic with this strategy, in principle: if it can be established that the conditions are met for achieving cognitive political authority through democratic decision-­making, then the epistemic accountability conception explains why there is a permission to make binding political decisions in this way.14 But, as I’ve argued in Chapter 4, there are reasons to think that the epistemic circumstances of politics also undermine the positive epistemic argument for democratic decision-­making, making it likely that cognitive political authority can’t be achieved in this way. If democratic decision-­ making can’t be relied on to generate cognitive political authority, then either democratic decision-­making is not legitimate, or its legitimizing power has to be accounted for on other grounds. This second option is the one I favour. If the positive epistemic strategy fails, there is a negative epistemic argument for democracy, which aims to show that democratic decision-­making is legitimate to the extent that it 14  My stance here differs from Lafont’s (2020: 96), who criticizes epistemic democrats for failing to properly honour what I’ve called the equal political authoritativeness of the citizens, drawing a con­ trast between democracy proper and what she calls the democratic epistocracy defended by epistemic democrats. I’ll consider her view in more detail later.

Responding To Political Disagreements  205 constitutes an adequate resolution of the impasse that normatively significant disagreements can create. This negative argument for democracy runs like this. If the circumstances are such that there is no cognitive political authority, then that means that citizens are not required to politically defer to ­others.15 If the citizens are not required to politically defer to others, a natural implica­ tion is that they are equally politically authoritative—­at least absent a further argument showing that they are not equally politically authoritative. You might ask: why is equal political authoritativeness, the defining commitment of will-­based conceptions of political legitimacy, a plausible normative assumption if there is no cognitive political authority? Why not assign greater political authoritativeness to the better educated, for example, along the lines John Stuart Mill’s plural voting scheme envisages (Mill 1991 [1861])? If the better educated can be shown to be more likely to make the right pol­it­ical decisions, isn’t that a ground for ensuring that they are more politically authoritative than the less educated?16 Assuming the better-­educated are indeed more likely to make the right political decisions, which may not actually be the case, my answer to this question is the following. As I explained in Section 5.2, the epistemic account­ ability conception doesn’t define political authoritativeness instrumentally, in terms of a probability of making the right decisions. There either is cognitive political authority, arising from decisive epistemic authority on what the right political decision is in a given context, or there isn’t. If there isn’t, then the epistemic accountability conception supports the political will, suitably understood, as a ground of political legitimacy, as argued in Sections 5.3 and 9.2. Because it rejects a purely instrumentalist approach to political authorita­ tiveness, the epistemic accountability conception doesn’t support a Millian plural voting scheme that would assign greater political authoritativeness to the better educated. This said, the epistemic accountability conception does restrict valid contributions to political deliberation, at least in decision-­making contexts, to contributions from citizens who reason well. But norms of practical ­reasoning can be satisfied without undermining a commitment to equal political authoritativeness. Indeed, most democratic will-­based concep­ tions of pol­it­ical legitimacy include some requirements of rationality or ­reasonableness, as we saw earlier (Chapter 6). The commitment to equal 15  As part of well-­ordered political deliberation, they might still be required to epistemically defer on a whole range of politically relevant questions. But, as I’ve argued earlier, such epistemic deference should be distinguished from political deference. 16  I thank an anonymous referee for pressing me on this point.

206  The Grounds of Political Legitimacy political authoritativeness becomes problematic if there are groups of citizens who can’t satisfy appropriate norms of practical reasoning. We generally assume that this is the case with very young children. But it’s more difficult to show this in other cases, and that supports a commitment to equal political authoritativeness. If citizens are equally politically authoritative, then their political judg­ ments are equally valid (at least as long as they satisfy norms of good practical reasoning). This supports democracy, because democracy gives all citizens an equal say. This negative epistemic argument for legitimization through democracy can explain why democratic legitimization has normative force in circumstances where there is no cognitive political authority. The argument obviously borrows quite heavily from standard will-­based arguments for democratic legitimacy, especially from arguments that focus explicitly on the equal political authoritativeness of the citizens (Kolodny 2014a, 2014b; Viehoff 2014; Lafont 2020). But instead of taking the equal political authoritativeness of citizens as an unconditional moral premise, the negative epistemic argument treats it as a moral premise that is conditional on epistemic circumstances. While denying that citizens are always equally politically authoritative, it accepts that they are equally politically authoritative when there are fact-­dependent political disagreements or purely practical political disagree­ ments that persist in well-­ordered political deliberation. When there are such normatively significant disagreements, no side can claim greater authoritative­ ness, thus supporting the equal political authoritativeness of the citizens as a ground of political legitimacy, and democracy as a political decision-­making procedure that respects the citizens’ equal political authoritativeness. The epistemic circumstances of politics make fact-­dependent dis­agree­ ments very likely, as I’ve argued earlier, whether it’s in relation to empirical facts or normative facts, or both. The negative epistemic argument thus sup­ ports democratic legitimization for the majority of political decisions, even though it is secondary to cognitive political authority in normative terms.

(b)  The Importance of Political Inclusion In light of the importance of democracy for political legitimacy, on this nega­ tive epistemic argument, we are now in a better position to shed light on the normative role of participation norms. I introduced participation norms in Chapter 6, but I haven’t said much about their role in political deliberation and legitimate political decision-­making.

Responding To Political Disagreements  207 As you might recall, participation norms hold that the validity of ­contributions to political deliberation depends on standing. They are the main complement of norms of practical reasoning. In a democratic context, participation norms reflect the equal political authoritativeness of all citizens. They ensure that well-­ordered political deliberation responds to the valid political claims of all citizens and doesn’t arbitrarily privilege the political claims of some citizens over those of others. Political deliberation that is biased against the views of some groups of citizens because it excludes them from having their contributions heard in political deliberation—­on non-­epistemic grounds—­is in tension with the premise of equal political authoritativeness on which democracy is based and fails to properly underpin legitimate political decision-­making. In epistemic circumstances where there is cognitive political authority, epistemic accountability implies that the validity of contributions to political deliberation is determined on epistemic grounds. That is to say, what deter­ mines whether a contribution should have weight in political deliberation in those circumstances isn’t so much that it’s been made by someone with stand­ ing. Instead, as we saw, it’s whether the contribution responds well to available evidence and expertise. In the normal epistemic circumstances of politics, by contrast, in which cognitive political authority tends not to be available, standing becomes a key determinant of the validity of contributions to pol­it­ ical deliberation. While norms of practical reasoning, including epistemic norms, still apply, epistemic considerations underdetermine legitimate decision-­making, and this implies that the equal political authoritativeness of the citizens, as long as they reason well, is decisive for political legitimacy (see Section 7.2). But inclusive political participation is important beyond securing standing. As we saw in earlier chapters, participation norms also have instrumental epistemic value, in addition to their moral value relating to protecting the equal political authoritativeness of citizens. As I put the point towards the end of Chapter 5, inclusive political deliberation has a constructive function because it helps to gather evidence on politically relevant issues and to crit­ic­ al­ly scrutinize purported political expertise. Or as I put the point in Chapter 8, maintaining a democratic political culture through inclusive political de­lib­ er­ation helps to create the conditions for establishing cognitive political authority and to make sure that claims to political expertise do not overreach. For both reasons—­to help create the conditions for political decision-­ making based on cognitive political authority and to ensure that political decision-­ making responds to the equal political authoritativeness of all

208  The Grounds of Political Legitimacy citizens when there is no cognitive political authority—­participation norms play an important normative role in well-­ordered political deliberation.

(c)  Constrained Democracy The negative epistemic argument for democracy that I’ve presented in­corp­or­ ates epistemic constraints on legitimate political decision-­making in two ways. First, there is the constraint that cognitive political authority imposes. If there is cognitive political authority, then political deference is required from the citizens and this limits the legitimizing force of democracy. Second, because I’ve argued that legitimate political decision-­making is necessarily embedded in well-­ordered political deliberation, and well-­ordered political deliberation is subject to a range of norms, including epistemic norms, this further constrains the legitimizing force of democratic decision-­ making. Democratic legitimization—­like all legitimization—­must be embedded in well-­ordered political deliberation, and the epistemic accountability concep­ tion explains why an unconstrained political will can’t trump well-­ordered political deliberation. Democratic decision-­making is legitimate, on this view, to the extent that it enables a choice in circumstances where there are nor­ matively significant political disagreements—­disagreements that persist in well-­ordered political deliberation. If deliberation is not well ordered, this argument for democracy collapses. Because of the epistemic constraints on democracy that the epistemic accountability conception of political legitimacy supports, we might call the resulting view epistemically constrained democracy, or constrained democ­ racy for short. Constrained democracy recognizes the legitimizing force of democracy in many instances, but it does not take the political will as the primary ground of political legitimacy; it rejects that the citizens are equally politically authoritative on all issues and that democratic legitimization can trump legitimization on the basis of cognitive political authority. One advantage of this way of thinking about democratic legitimization is that it avoids the arbitrariness objection that I first raised in Chapter 2 against will-­based conceptions of political legitimacy and that I elaborated on as I further developed the epistemic accountability conception of legitimacy in subsequent chapters. As I don’t want to rehearse my earlier argument here, let me just note that this negative epistemic argument for democracy builds on the recognition that, as Joseph Raz (1990) put it in his discussion of Rawls’ political liberalism, “epistemic abstinence” is not an option. In light of the

Responding To Political Disagreements  209 possibility of very wrong democratic decisions—­including decisions that are in tension with the freedom and equality of some citizens—­epistemic con­ straints on legitimate political decision-­making must be taken seriously and purely will-­based arguments for democracy fail to do so. Constrained democracy not only avoids the arbitrariness objection that affects will-­based conceptions of democratic legitimacy, it also makes it clear what the appropriate role of epistemic considerations is in legitimate political decision-­making. In doing so, it addresses a worry that Cristina Lafont has raised about standard epistemic arguments for democracy. Discussing Landemore’s deliberative epistemic theory, in particular, Lafont argues that epistemic democrats wrongly instrumentalize democratic participation. As Lafont puts it (2020: 100): the proper scope of deliberative inclusion is not just the set of knowers who can figure out the best political answers, but the set of citizens to whom justification for their compliance is owed. Whereas the former set is fixed by epi­ stem­ic properties related to tracking the truth, the latter set is fixed by the non-­epistemic property of political membership.

To put the point in my language, Lafont criticizes epistemic democrats for failing to grasp the import of the citizens’ equal political authoritativeness for the justification of political decisions and, therefore, the legitimacy of democracy. I agree with Lafont that the legitimizing force of democracy is best under­ stood as arising from the way in which democratic decision-­ making is embedded in inclusive political deliberation and responds to the citizens’ equal political authoritativeness. The positive epistemic argument for democ­ racy, because it rests on a belief-­based conception of political legitimacy, does not attribute intrinsic value to the equal political authoritativeness of the citi­ zens and to inclusive political deliberation. But Lafont’s rejection of a belief-­based argument for democracy in favour of a will-­based argument ends up giving insufficient weight to epistemic con­ siderations in political justification. The epistemic accountability conception of legitimacy that I’ve developed in this book shows that we shouldn’t think of political justification as exclusively will-­based. Epistemic accountability plays a role in political justification and can trump political justification aiming at mutual accountability. And this means that instead of defending democratic decision-­making as the only route to political legitimacy, we need to ask in what epistemic circumstances reliance on democratic decision-­making

210  The Grounds of Political Legitimacy (or  some other decision-­making procedure that respects equal political authoritativeness) is appropriate and when it is not. In sum, in this chapter I’ve considered the implications of normatively sig­ nificant political disagreements for political justification and political le­git­im­ acy. Normatively significant disagreements are fact-­ dependent or purely practical disagreements that persist in well-­ordered political deliberation. If there are such normatively significant disagreements, there is no cognitive political authority and legitimate political decision-­making depends on a sec­ ondary ground of political legitimacy—­on how decision-­making responds to the plurality of valid political claims. In the final section, I’ve considered democratic legitimization as a response to normatively significant dis­agree­ ments, and I’ve documented advantages of the—­constrained—­defence of democracy that follows from the epistemic accountability conception of legitimacy compared to the main alternative defences of democracy. Democracy, I’ve argued, is an important source of political legitimacy, but not all political issues require democratic decision-­making. In some epistemic circumstances, democratic legitimization is not required and, at least poten­ tially, is in tension with legitimate political decision-­making. In some epi­ stem­ ic circumstances, their epistemic accountability binds both political decision-­makers and ordinary citizens to the decisions recommended by those with cognitive political authority.

  Epilogue This book has examined a central normative political concept: political le­git­im­acy. It has focused on the question of what makes political decisions le­git­im­ate, presupposing that political legitimacy is an important aim of political decision-­making. In Part  I of the book, I considered the three main grounds of political legitimacy—­normative facts, cognitive political authority, and the political will. I rejected factualist conceptions of political legitimacy, based on an accessibility problem. I then outlined a conception of political legitimacy that rests on hybrid grounds, involving both cognitive political authority and the political will. I called it the epistemic accountability conception because it emphasizes that there are epistemic constraints on the permission to make binding political decisions. Both political decision-­makers and citizens are subject to those constraints. By prioritizing cognitive political authority, the epistemic accountability conception pushes back against the common view that legitimate political decision-­making necessarily requires responding to the citizens’ will in some form, for example through democratic legitimation. Instead, it holds that the legitimizing force of the political will is epistemically constrained. This said, the epistemic accountability conception is not anti-­democratic for two main reasons. First, in favourable epistemic circumstances, democracy may itself be a means to achieve cognitive political authority. The epi­ stem­ic accountability conception of legitimacy then supports democracy, but on grounds of the epistemic advantage that it secures, not on the ground of how it responds to the citizens’ will. Second, because the epistemic circumstances of politics tend not to be favourable, the epistemic accountability conception highlights that even if cognitive political authority is the primary ground of political legitimacy, the legitimacy of political decisions is normally determined by the political will, for example as expressed democratically. In Part II of the book, I further elaborated on how the epistemic circumstances of politics bear on legitimate political decision-­making. I argued that epistemic considerations play both a positive and a negative role in legitimate political decision-­making. Positively, they determine when political le­git­im­acy The Grounds of Political Legitimacy. Fabienne Peter, Oxford University Press. © Fabienne Peter 2023. DOI: 10.1093/oso/9780198872382.003.0010

212  The Grounds of Political Legitimacy depends on deferring to cognitive political authority and what counts as a valid political claim. Negatively, they determine when cognitive political authority is epistemically underdetermined and when political le­git­im­acy thus depends on responding to the political will, for example through demo­ crat­ic justification. The epistemic accountability conception covers both roles by identifying when political deference is required and when legitimate pol­it­ ical decision-­making must respond to political disagreements. At the core of the epistemic accountability conception of legitimacy is the idea of well-­ordered political deliberation. Well-­ordered political deliberation satisfies a set of norms that together specify what counts as a valid contribution to political deliberation. A valid contribution is a contribution that has the potential to shape legitimate political decision-­making because it can add to the justification of a particular political decision or undermine an existing justification. I argued that well-­ordered political deliberation satisfies participation norms, which govern standing to contribute, as well as practical reason­ing norms. I also argued that practical reasoning norms include some epistemic norms: the validity of contributions to political deliberation doesn’t just depend on good practical reasoning, it also depends on the epistemic status of beliefs in relevant premises. An important implication of the epistemic accountability conception of political legitimacy is that it can be appropriate to defer to the political judgments of others in well-­ordered political deliberation. Political philosophers have been reluctant to embrace political deference, because of an inevitable tension between political deference and core democratic commitments. I agree that political deference is in tension with those commitments. As we saw, the epistemic accountability conception holds that well-­ordered political deliberation supports a democratic political culture. But it also holds that an epistemically unconstrained political will may be a source of illegitimacy. If the epistemic circumstances allow it, political deference to the political judgment of those best placed to assess what the right decision is may be required in well-­ordered political deliberation. I think that the situation at the beginning of the Covid-­19 pandemic is a good illustration of how the epistemic circumstances of politics may be supportive of a requirement to politically defer. Future decision-­making in relation to managing the climate crisis may face similar scenarios. This said, I argued at length that the epistemic circumstances of ­politics are not normally conducive to support a requirement to politically defer.  In  the normal epistemic circumstances of politics, well-­ordered political de­ lib­ er­ ation tends to lead to normatively significant political

Epilogue  213 disagreements—­disagreements in which both sides hold well-­justified views, given possibly fragmented evidence and difficulties with achieving political competence and with identifying expertise. When there are normatively significant political disagreements, then political legitimacy must somehow respond to those disagreements, for example through democratic le­git­im­ ation. This highlights the importance of the political will, suitably understood, as a ground of political legitimacy. And one main advantage of the epistemic accountability conception of political legitimacy is that it helps us understand the difference between cases in which both sides of a political disagreement deserve respect, and cases in which they don’t. In writing this book, I had one lingering worry: what if political legitimacy as the normative standard of political decision-­ making is increasingly eclipsed? There has been much talk about post-­truth politics recently, but if the argument in the book is correct, truth isn’t at the heart of legitimate pol­it­ ical decision-­making anyway—­justification is. To the extent that current political developments should concern us, post-­truth isn’t quite the right diagnosis. Moreover, given the epistemic circumstances of politics, more truth isn’t the cure. What should concern us, however, is what we might call post-­legitimation politics. Post-­legitimation politics, as I understand it, is a political system in which decision-­making not only lacks justification, but doesn’t even aim for justification. Instead of seeking justification, political decision-­ making is informed by other goals—­for example the goals of a wealthy elite. And instead of being concerned with a lack of justification, political office holders probe the limits of what they can get away with without too much opposition from their constituency. In post-­legitimation politics, if legitimacy plays a role at all, it tends to be negative, in the form of the delegitimization of legitimate political agents, political institutions, and political practices. Pursued by populists and autocrats alike, delegitimization serves the aim of dislodging legitimacy as a normative standard altogether. By unshackling their political activities from the imperative of being accountable to their constituency, they are creating opportunities for personal political control and personal gain outside of the constraints of legitimate political decision-­making. Post-­legitimization politics is a major threat, I think, and not one we’re familiar with. Politics since the second world war, in many countries around the world, has been guided by the idea of democracy as a source of political legitimacy and we’ve become used to thinking that democracy would secure political legitimacy for us. While this book has highlighted the limits of

214  The Grounds of Political Legitimacy demo­crat­ic legitimization, it has also offered a new explanation for why democracy is important for political legitimacy. If democratic institutions are now being weakened through post-­ legitimization politics, legitimate decision-­making loses one of its main anchors. But it’s not just democracy we’re used to. We’re also familiar with competing accounts of legitimization—­divine authorization, for example, or the hereditary privilege on which monarchs and other aristocrats rely. Even Nazism and other forms of fascism appeal to legitimization based on some idea of unity of the people. Post-­legitimization politics breaks with all those attempts to legitimize political decision-­ making and replaces them with nothing. Is post-­legitimization politics less dangerous than politics based on the wrong account of legitimization? After all, what made Nazism so dangerous was how its core ideologies helped to lower resistance from the citizenry against political actions previously considered unfathomable (Pauer-­Studer 2020). But post-­legitimization politics may be a result of the new tools for mass manipulation that digital technologies provide. If successfully deployed, such technologies dispense with the need for an overarching ideology designed to manage potential opposition. And that makes post-­legitimization as dangerous as ideology-­driven legitimization. My hope is that this book can contribute to a collective endeavour to limit the spread of post-­legitimization politics. By clarifying what makes political decisions legitimate and why legitimacy matters, it can perhaps cut through some of the confusion created by the current political climate and help us fasten political decision-­ making more securely to its normative aim of legitimacy.

Bibliography Ahlstrom-Vij, Kristoffer. 2015. “The Social Virtue of Blind Deference.” Philosophy and Phenomenological Research 91: 545–82. Ahlstrom-Vij, Kristoffer. 2022. “The Case for Modelled Democracy.” Episteme 19(1): 89–110. Almond, Gabriel  A. and Sydney Verba. 1963. The Civic Culture. Princeton: Princeton University Press. Anderson, Christopher et al. 2005. Losers’ Consent: Elections and Democratic Legitimacy. Oxford: Oxford University Press. Anderson, Elizabeth. 1999. “What’s the Point of Equality?” Ethics 109(2): 287–337. Anderson, Elizabeth. 2011. “Democracy, Public Policy, and Lay Assessments of Scientific Testimony.” Episteme 8(2): 144–64. Applbaum, Arthur. 2019. Legitimacy: The Right to Rule in a Wanton World. Cambridge, Mass.: Harvard University Press. Arendt, Hannah. 1993. “Truth and Politics.” In Between Past and Future: Eight Exercises in Political Thought. New York: Penguin Books, pp. 227–64. Arneson, Richard. 2003. “Debate: Defending the Purely Instrumental Account of Democratic Legitimacy.” Journal of Political Philosophy 11(1): 122–32. Aytac, Ugur. 2022. “Political Realism and Epistemic Constraints.” Social Theory and Practice 48(1): 1–27. Bajaj, Sameer. 2017. “Self-Defeat and the Foundations of Public Reason.” Philosophical Studies 174(12): 3133–51. Ballantyne, Nathan. 2019. Knowing our Limits. Oxford: Oxford University Press. Baynes, Kenneth. 1992. The Normative Grounds of Social Criticism. Albany: State University of New York Press. Beetham, David, 1991. The Legitimation of Power. Basingstoke: Palgrave. Ben-Ghiat, Ruth. 2020. Strongmen. Princeton: Princeton University Press. Benkler, Yochai, Robert Farris, and Hal Roberts. 2018. Network Propaganda. New York: Oxford University Press. Benson, Jonathan. 2021. “The Epistemic Value of Deliberative Democracy: How Far Can Diversity Take Us?” Synthese (https://doi.org/10.1007/s11229-021-03161-0). Berlin, Isaiah. 1969. “Two Concepts of Liberty.” In Isaiah Berlin, Four Essays on Liberty. London: Oxford University Press, pp. 118–72. Bicchieri, Cristina et al. 2021. “In Science We (Should) Trust: Expectations and Compliance During the COVID-19 Pandemic.” PloS one 16(6), e0252892. Bohman, James. 1996. Public Deliberation. Cambridge, Mass.: MIT Press. Bokros, Sofia Ellinor. 2020. “A Deference Model of Epistemic Authority.” Synthese 198: 12041–69. Bovens, Luc and Wlodek Rabinowicz. 2003. “Democracy and Argument—­Tracking Truth in Complex Social Decisions.” In Anne van Aaken, Christian List, and Christoph Lütge (eds.), Deliberation and Decision. Aldershot: Ashgate Publishing, pp. 143–57. Brennan, Jason. 2016. Against Democracy. Princeton: Princeton University Press. Brinkmann, Matthias. 2022. “In Defence of Non-Ideal Political Deference.” Episteme 19(2): 264–85.

216 Bibliography Brown, Jessica. 2008. “Knowledge and Practical Reason.” Philosophy Compass 3(6): 1135–52. Buchanan, Allen. 2002. “Political Legitimacy and Democracy.” Ethics 112(4), 689–719. Buchanan, James and Gordon Tullock. 1962. The Calculus of Consent. Ann Arbor: University of Michigan Press. Buchak, Lara. 2021. “A Faithful Response to Disagreement.” The Philosophical Review 130(2): 191–226 (https://doi.org/10.1215/00318108-8809893). Cartwright, Nancy. 1983. How the Laws of Physics Lie. Oxford: Clarendon Press. Cassam, Quassim. 2019. Conspiracy Theories. Cambridge: Polity Press. Cassam, Quassim. 2021. Extremism. New York: Routledge. Chambers, Simone. 1996. Reasonable Democracy. Ithaca: Cornell University Press. Chambers, Simone. 2017. “Balancing Epistemic Quality and Equal Participation in a System Approach to Deliberative Democracy.” Social Epistemology 31(3): 266–76. Chang, Ruth. 2013. “Grounding Practical Normativity: Going Hybrid.” Philosophical Studies 164(1): 163–87. Cherry, Myisha. 2021. The Case for Rage. New York: Oxford University Press. Cholbi, Michael. 2007. “Moral Expertise and the Credentials Problem.” Ethical Theory and Moral Practice 10: 323–34. Christensen, David. 2007. “Epistemology of Disagreement: The Good News.” Philosophical Review 116: 187–217. Christensen, David. 2014. “Disagreement and Public Controversy.” In Jennifer Lackey (ed.), Essays in Collective Epistemology. Oxford: Oxford University Press, pp. 142–63. Christiano, Thomas. 2008. The Constitution of Equality. Oxford: Oxford University Press. Christiano, Thomas. 2012. “Rational Deliberation among Experts and Citizens.” In John Parkinson and Jane Mansbridge (eds.), Deliberative Systems. Cambridge: Cambridge University Press, pp. 27–51. Coady, David. 2006. “When Experts Disagree.” Episteme 3(1–2): 68–79. Cohen, Joshua. 1986. “An Epistemic Conception of Democracy.” Ethics 97(1): 26–38. Cohen, Joshua. 1997. “Procedure and Substance in Deliberative Democracy.” In James Bohman and William Rehg (eds.), Deliberative Democracy. Cambridge, Mass.: MIT Press, pp. 407–37. Collins, Patricia  H. 1989. “The Social Construction of Black Feminist Thought.” Signs 14(4): 745–73. Costello, Thomas et al. 2022. “Clarifying the Structure and Nature of Left-Wing Authoritarianism.” Journal of Personality and Social Psychology 122(1): 135–70. Croce, Michel. 2018. “Expert-oriented Abilities vs. Novice-oriented Abilities: An Alternative Account of Epistemic Authority.” Episteme 15(4): 476–98. Darwall, Stephen. 2006. The Second-Person Standpoint. Cambridge, Mass.: Harvard University Press. Darwall, Stephen. 2010. “Authority and Reasons: Exclusionary and Second-Personal.” Ethics 120: 257–78. DiPaolo, Joshua. 2021. “What’s Wrong with Epistemic Trespassing?” Philosophical Studies, online first (https://doi.org/10.1007/s11098-021-01657-6). Dorst, Kevin. Forthcoming. “Rational Polarization.” Philosophical Review (https://philpapers.org/rec/DORRP-2). Douglas, Heather E. 2009. Science, Policy, and the Value-Free Ideal. Pittsburgh: University of Pittsburgh Press. Douglas, Heather  E. 2021. “The Role of Scientific Expertise in Democracy.” In Michael Hannon and Jeroen de Ridder (eds.), Routledge Handbook of Political Epistemology. New York: Routledge, pp. 435–45.

Bibliography  217 Dreier, James. 2009. “Relativism (and Expressivism) and the Problem of Disagreement.” Philosophical Perspectives 23(1): 79–110. Driver, Julia. 2006. “Autonomy and the Asymmetry Problem for Moral Expertise.” Philosophical Studies 128(3): 619–44. Dryzek, John. 2002. Deliberative Democracy and Beyond: Liberals, Critics, Contestations. Oxford: Oxford University Press. Dworkin, Ronald. 1975. “The Original Position.” In Norman Daniels (ed.), Reading Rawls. New York: Basic Books, pp. 16–52. Elga, Adam. 2007. “Reflection and Disagreement.” Noûs 41(3): 478–502. Enoch, David. 2011. “Giving Practical Reasons.” Philosopher’s Imprint 11(4): 1–22. Enoch, David. 2014a. “Authority and Reason-Giving.” Philosophy and Phenomenological Research 89(2): 296–332. Enoch, David. 2014b. “A Defense of Moral Deference.” Journal of Philosophy 111(5): 229–58. Enoch, David. 2015. “Against Public Reason.” Oxford Studies in Political Philosophy, Vol. 1. Oxford: Oxford University Press, pp. 112–42. Estlund, David. 2000. “Jeremy Waldron on Law and Disagreement.” Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition 99(1): 111–28. Estlund, David. 2008. Democratic Authority. Princeton: Princeton University Press. Ferretti, Maria Paola. 2018. The Public Perspective: Public Justification and the Ethics of Belief. London: Rowman and Littlefield. Fricker, Miranda. 2007. Epistemic Injustice. Oxford: Oxford University Press. Fricker, Miranda. 2013. “Epistemic Justice as a Condition of Political Freedom?” Synthese 190(7): 1317–32. Forst, Rainer. 2014. The Right to Justification. New York: Columbia University Press. Fossen, Thomas. 2022. “Political Legitimacy as a Problem of Judgment: What Distinguishes Moralist, Realist, and Pragmatist Approaches? Social Theory and Practice 48(1): 89–113. Fuerstein, Michael. 2012. “Epistemic Trust and Liberal Justification.” Journal of Political Philosophy 21: 179–99. Funkhouser, Eric. 2022. “Dangerous Beliefs, Effective Signals.” Philosophical Psychology, online first (https://doi.org/10.1080/09515089.2022.2101444). Gaus, Gerald. 1996. Justificatory Liberalism. Oxford: Oxford University Press. Gaus, Gerald. 2011a. The Order of Public Reason. Cambridge: Cambridge University Press. Gaus, Gerald. 2011b. “On Seeking the Truth (Whatever That Is) Through Democracy: Estlund’s Case for the Qualified Epistemic Claim.” Ethics 121: 270–300. Gerken, Mikkel. 2011. “Warrant and Action.” Synthese 178(3): 529–47. Gibbons, Adam F. 2021. “Political Disagreement and Minimal Epistocracy.” Journal of Ethics and Social Philosophy 19(2): 192–202. Goldberg, Sanford. 2015. Assertion. Oxford: Oxford University Press. Goldberg, Sanford. 2022. “What Is a Speaker Owed?” Philosophy and Public Affairs, online first (https://doi.org/10.1111/papa.12219). Goldman Alvin. 2001. “Experts: Which Ones Should You Trust?” Philosophy and Phenomenological Research 63(1): 85–110. Goldman, Alvin. 2010. “Epistemic Relativism and Reasonable Disagreement.” In Richard Feldman and Ted A. Warfield (eds.), Disagreement. Oxford: Oxford University Press, pp. 187–215. Goldman, Alvin. 2018. “Expertise.” Topoi 37: 3–10. Goodin, Robert. 2003. Reflective Democracy. Oxford: Oxford University Press. Goodin, Robert and Kai Spiekermann. 2019. An Epistemic Theory of Democracy. Oxford: Oxford University Press.

218 Bibliography Green, Leslie. 1988. The Authority of the State. Oxford: Clarendon Press. Greene, Amanda. 2016. “Consent and Political Legitimacy.” Oxford Studies in Political Philosophy 2: 71–97. Greene, Amanda. 2017. “Legitimacy Without Liberalism: A Defense of Max Weber’s Standard of Political Legitimacy.” Analyse & Kritik 39(2): 295–324. Greene, Amanda and Robert Mark Simpson. 2017. “Tolerating Hate in the Name of Democracy.” Modern Law Review 80(4): 746–65. Grim, Patrick, Daniel J. Singer, Aaron Bramson, Bennett Holman, Sean McGeehan, and William J. Berger. 2019. “Diversity, Ability, and Expertise in Epistemic Communities.” Philosophy of Science 86(1): 98–123. Grofman Bernard and Scott  L.  Feld. 1988. “Rousseau’s General Will: A Condorcetian Perspective.” American Political Science Review 82(2): 567–76. Guerrero, Alex. 2014. “Against Elections: The Lottocratic Alternative.” Philosophy and Public Affairs 42: 135–78. Gutmann, Amy and Dennis Thompson. 1996. Democracy and Disagreement. Cambridge, Mass.: Harvard University Press. Gutmann, Amy and Dennis Thompson. 2004. Why Deliberative Democracy? Princeton: Princeton University Press. Habermas, Juergen. 1996. Between Facts and Norms, transl. William Rehg. Cambridge, Mass.: Harvard University Press. Hampton, Jean. 1998. Political Philosophy. Boulder: Westview Press. Hannon, Michael. 2021. “Disagreement or Badmouthing? The Role of Expressive Discourse in Politics.” In Elizabeth Edenberg and Michael Hannon (eds.), Political Epistemology. Oxford: Oxford University Press, pp. 297–318. Harding, Sandra. 1991. Whose Science? Whose Knowledge? Thinking from Women’s Lives. Ithaca: Cornell University Press. Harman, Elizabeth. 2015. “The Irrelevance of Moral Uncertainty.” Oxford Studies in Metaethics 10: 53–79. Hart, H. L. A. 1955. Are There Any Natural Rights? Philosophical Review 64(2): 175–91. Hartley, Christie and Lori Watson, 2018. Equal Citizenship and Public Reason: A Feminist Political Liberalism. New York: Oxford University Press. Hédoin, Cyril. 2021. “The ‘Epistemic Critique’ of Epistocracy and Its Inadequacy.” Social Epistemology 35(5): 502–14. Heinze, Eric. 2017. Hate Speech and Democratic Citizenship. Oxford: Oxford University Press. Hershovitz, Scott. 2003. “Legitimacy, Democracy, and Razian Authority.” Legal Theory 9(3): 201–20. Hills, Alison. 2009. “Moral Testimony and Moral Epistemology.” Ethics 120(1): 94–127. Hobbes, Thomas. 2017 [1651]. Leviathan. Edited by Christopher Brooke. London: Penguin. Hong, Lu and Scott Page. 2004. “Groups of Diverse Problem Solvers Can Outperform Groups of High-Ability Problem Solvers.” Proceedings of the National Academy of Sciences 101: 16385–9. Hopkins, Robert. 2007. “What Is Wrong with Moral Testimony?” Philosophy and Phenomenological Research 74(3): 611–34. Horton, John. 1992. Political Obligation. Basingstoke: Palgrave Macmillan. Horton, John. 2012. “Political Legitimacy, Justice and Consent.” Critical Review of International Social and Political Philosophy 15(2): 129–48. Howell, Robert J. 2014. “Google Morals, Virtue, and the Asymmetry of Deference.” Noûs 48(3): 389–415.

Bibliography  219 Huemer, Michael. 2012. The Problem of Authority. Basingstoke: Palgrave Macmillan. Jeffrey, Anne. 2018. “Limited Epistocracy and Political Inclusion.” Episteme 15(4): 412–32. Johnson, Casey Rebecca (ed.) 2018. Voicing Dissent: The Ethics and Epistemology of Making Disagreement Public. New York: Routledge. Kappel, Klemens. 2017. “Fact-Dependent Policy Disagreements and Political Legitimacy.” Ethical Theory and Moral Practice 20: 313–31. Kavanagh, Matthew M. 2020. “Authoritarianism, Outbreaks, and Information Politics.” The Lancet Public Health 5(3): e135–6 (https://doi.org/10.1016/S2468-2667(20)30030-X). Kelly, Thomas. 2010. “Peer Disagreement and Higher Order Evidence.” In Richard Feldman and Ted  A.  Warfield (eds.), Disagreement. Oxford: Oxford University Press, pp. 111–74. Kelly, Thomas and Sarah McGrath. 2010. “Is Reflective Equilibrium Enough?” Philosophical Perspectives 24(1): 325–59. Kitcher, Philip. 2011. Science in a Democratic Society. New York: Prometheus Books. Kogelmann, Brian. 2022. “Finding the Epistocrats.” Episteme, online first (https://doi. org/10.1017/epi.2022.18). Kolodny, Niko. 2014a. “Rule Over None I: What Justifies Democracy.” Philosophy and Public Affairs 42(3): 195–229. Kolodny, Niko. 2014b. “Rule Over None II: Social Equality and the Justification of Democracy.” Philosophy and Public Affairs 42(4): 287–336. Lackey, Jennifer. 2007. “Norms of Assertion.” Noûs 41: 595–626. Lackey, Jennifer. 2010. “What Should We Do When We Disagree?” In Tamar Szabó Gendler and John Hawthorne (eds.), Oxford Studies in Epistemology. Oxford: Oxford University Press, pp. 274–93. Lackey, Jennifer. 2018. “Experts and Peer Disagreement.” In M. A. Benton, J. Hawthorne, and D.  Rabinowitz (eds.), Knowledge, Belief, and God: New Insights in Religious Epistemology. Oxford: Oxford University Press, pp. 228–45. Lackey, Jennifer and Ernest Sosa (eds.). 2006. The Epistemology of Testimony. Oxford: Clarendon Press. Lafont, Cristina. 2020. Democracy without Shortcuts. Oxford: Oxford University Press. Landemore, Hélène. 2013. Democratic Reason. Princeton: Princeton University Press. Landemore, Hélène. 2020. Open Democracy. Princeton: Princeton University Press. Larmore, Charles. 2008. The Autonomy of Morality. Cambridge: Cambridge University Press. Larmore, Charles. 2020. What Is Political Philosophy? Princeton: Princeton University Press. Leader Maynard, Jonathan and Alex Worsnip. 2018. “Is There a Distinctively Political Normativity?” Ethics 128(4): 756–87. Lillehammer, Hallvard. 2021. “Testimony, Deference and Value.” In Michael Hannon and Jeroen de Ridder (eds.), The Routledge Handbook of Political Epistemology. New York: Taylor and Francis, pp. 458–68. Littlejohn, Clayton. 2012. Justification and the Truth-Connection. Cambridge: Cambridge University Press. Locke, John 1980 [1690]. Second Treatise on Civil Government. Edited by C. B. MacPherson, Indianapolis: Hackett. Longino, Helen. 1990. Science as Social Knowledge. Princeton: Princeton University Press. Manin, Bernard. 1987. “On Legitimacy and Political Deliberation.” Political Theory 15: 338–68. Marmor, Andrei. 2011. “An Institutional Conception of Authority.” Philosophy and Public Affairs 39(3): 238–61.

220 Bibliography Marques, Teresa and Manuel García-Carpintero. 2014. Disagreement about Taste: Commonality Presuppositions and Coordination. Australasian Journal of Philosophy 92(4): 701–23. McGrath, Sarah. 2020. Moral Knowledge. Oxford: Oxford University Press. Mill, John Stuart. 1991 [1861] On Liberty and Other Essays. Edited by John Gray. Oxford: Oxford University Press. Mills, Charles. 2007. “White Ignorance.” In Shannon Sullivan and Nancy Tuana (eds.), Race and Epistemologies of Ignorance. Albany: State University of New York Press, pp. 11–38. Misak, Cheryl. 2000. Truth, Politics, Morality. New York: Routledge. Misak, Cheryl. 2004. “Making Disagreement Matter: Pragmatism and Deliberative Democracy.” Journal of Speculative Philosophy 18: 9–22. Mittiga, Ross. 2021. “Political Legitimacy, Authoritarianism, and Climate Change.” American Political Science Review, online first (https://doi.org/10.1017/S0003055421001301). Monti, Ezequiel Horacio. 2018. “On Darwall’s Case Against the Normal Justification Thesis.” Ethics 128(2): 432–45. Mudde, Cas and Cristóbal Rovira Kaltwasser (eds.). 2012. Populism in Europe and the Americas: Threat or Corrective for Democracy? Cambridge: Cambridge University Press. Muller, Jan-Werner. 2017. What Is Populism? London: Penguin. Nguyen, C.  Thi. 2020. “Cognitive Islands and Runaway Echo Chambers: Problems for Epistemic Dependence on Experts.” Synthese 197: 2803–21. Nguyen, C.  Thi. 2021. “Transparency Is Surveillance.” Philosophy and Phenomenological Research, online first (https://onlinelibrary.wiley.com/doi/abs/10.1111/phpr.12823). Nickel, Philip. 2001. “Moral Testimony and Its Authority.” Ethical Theory and Moral Practice 4(3): 253–66. Nuyen, A. T. 2013. “The ‘Mandate of Heaven’: Mencius and the Divine Command Theory of Political Legitimacy.” Philosophy East and West 63(2): 113–26. Oberman, Kieran. 2022. “Freedom and Viruses.” Ethics 132(4): 817–50. O’Connor, Cailin and James Owen Weatherall. 2018. “Scientific Polarization.” European Journal for Philosophy of Science 8(3): 855–75. Pamuk, Zeynep. 2021. Politics and Expertise: How to Use Science in a Democratic Society. Princeton: Princeton University Press. Parfit, Derek. 2011. On What Matters. Oxford: Oxford University Press. Parkinson, John and Jane Mansbridge Parkinson (eds.) 2012. Deliberative Systems. Cambridge: Cambridge University Press. Pateman, Carole. 1970. Participation and Democratic Theory. Cambridge: Cambridge University Press. Pauer-Studer, Herlinde. 2020. Justifying Injustice: Legal Theory in Nazi Germany. Cambridge: Cambridge University Press. Pauli, Benjamin  E. 2019. Flint Fights Back: Environmental Justice and Democracy in the Flint Water Crisis. Cambridge, Mass.: MIT Press. Peter, Fabienne. 2009. Democratic Legitimacy. New York: Routledge. Peter, Fabienne. 2013a. “The Procedural Epistemic Value of Deliberation.” Synthese 190(7): 1253–66. Peter, Fabienne. 2013b. “Epistemic Foundations of Political Liberalism.” Journal of Moral Philosophy 10(5): 598–620. Peter, Fabienne. 2016. “The Epistemic Circumstances of Democracy.” In Miranda Fricker and Michael Brady (eds.), The Epistemic Life of Groups. Oxford: Oxford University Press, pp. 133–49.

Bibliography  221 Peter, Fabienne. 2017. “Political Legitimacy.” Stanford Encyclopedia of Philosophy. Peter, Fabienne. 2020. “The Grounds of Political Legitimacy.” Journal of the American Philosophical Association 6(3): 372–90. Peter, Fabienne. 2021a. “Epistemic Norms of Political Deliberation.” In Michael Hannon and Jeroen de Ridder (eds.), Routledge Handbook of Political Epistemology. New York: Routledge, pp. 395–406. Peter, Fabienne. 2021b. “Truth and Uncertainty in Political Justification.” In Elizabeth Edenberg and Michael Hannon (eds.), Political Epistemology. Oxford: Oxford University Press, pp. 64–75. Pettigrew, Richard. 2022. Epistemic Risk and the Demands of Rationality. Oxford: Oxford University Press. Pettit, Philip. 2012. On the People’s Terms. Cambridge: Cambridge University Press. Pitkin, Hanna. 1966. “Obligation and Consent II.” American Political Science Review 60(1): 39–52. Plato. 2007. The Republic. Translated by Desmond Lee, introduction by Melissa Lane. London: Penguin. Putnam, Robert. 1993. Making Democracy Work. Princeton: Princeton University Press. Quong, Jonathan. 2011. Liberalism Without Perfectionism. Oxford: Oxford University Press. Railton, Peter. 2003. “On the Hypothetical and Non-hypothetical in Reasoning about Belief and Action.” In Garett Cullity and Berys Gaut (eds.), Ethics and Practical Reason. Oxford: Oxford University Press, pp. 53–79. Rawls, John. 1974. “The Independence of Moral Theory.” Proceedings and Addresses of the American Philosophical Association 48: 5–22. Rawls, John. 1980. “Kantian Constructivism in Moral Theory.” Journal of Philosophy 77: 515–72. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1995. “Reply to Habermas.” Journal of Philosophy 92(3): 132–80. Rawls, John. 2007. Lectures on the History of Political Philosophy. Edited by Samuel Freeman. Cambridge, Mass.: Harvard University Press. Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press. Raz, Joseph. 1990. “Facing Diversity: The Case of Epistemic Abstinence.” Philosophy and Public Affairs 19(1): 3–46. Raz, Joseph. 1995. Ethics in the Public Domain: Essays in the Morality of Law and Politics, Oxford: Clarendon Press. Raz, Joseph. 2006. “The Problem of Authority: Revisiting the Service Conception.” Minnesota Law Review 90: 1003–44. Raz, Joseph. 2010. “On Respect, Authority, and Neutrality: A Response.” Ethics 120(2): 279–301. Reiss, Julian. 2019. “Expertise, Agreement, and the Nature of Social Scientific Facts or: Against Epistocracy.” Social Epistemology 33(2): 183–92. Rich, Patricia. 2021. “The Key to the Knowledge Norm of Action Is Ambiguity.” Synthese 199(3): 9669–98. Richardson, Henry  S. 2002. Democratic Autonomy: Public Reasoning about the Ends of Policy. Oxford: Oxford University Press. Rini, Regina. 2021. “Weaponized Skepticism.” In Elizabeth Edenberg and Michael Hannon (eds.), Political Epistemology. Oxford: Oxford University Press, pp. 31–48. Ripstein, Arthur. 2004. “Authority and Coercion.” Philosophy and Public Affairs 32(1): 2–35. Rossi, Enzo and Matt Sleat. 2014. “Realism in Normative Political Theory.” Philosophy Compass 9(10): 689–701.

222 Bibliography Rousseau, Jean-Jacques. 1988 [1762]. On the Social Contract, Indianapolis: Hackett. Rowland, Richard and Robert M. Simpson. 2021. “Epistemic Permissivism and Reasonable Pluralism.” In Michael Hannon and Jeroen De Ridder (eds.), The Routledge Handbook of Political Epistemology. New York: Routledge. Sanders, Lynn. 1997. “Against Deliberation.” Political Theory 25(3): 347–76. Scanlon, Timothy. 2014. Being Realistic about Reasons. Oxford: Oxford University Press. Schauer, Frederick. 1982. Free Speech: A Philosophical Enquiry. Cambridge: Cambridge University Press. Schneewind, J. B. 1998. The Invention of Autonomy. Cambridge: Cambridge University Press. Schoenfield, Miriam. 2014. “Permission to Believe: Why Permissivism Is True and What It Tells Us about Irrelevant Influences on Belief.” Nous 48(2): 193–218. Schumpeter, Joseph A. 1942. Capitalism, Socialism, and Democracy. New York: Harper and Brothers. Schwartzberg, Melissa. 2015. “Epistemic Democracy and Its Challenges.” Annual Review of Political Science 18: 187–203. Sen, Amartya. 1999. “Democracy as a Universal Value.” Journal of Democracy 10(3): 3–17. Sen, Amartya. 2017. Collective Choice and Individual Welfare. London: Penguin. Shafer-Landau, Russ. 2003. Moral Realism. Oxford: Oxford University Press. Simmons, A.  John. 2001. Justification and Legitimacy: Essays on Rights and Obligations. Cambridge: Cambridge University Press. Simmons, A. John. 2005. “Consent Theory for Libertarians.” Social Philosophy and Policy 22(1): 330–56. Singer, Daniel J. 2019. “Diversity, Not Randomness, Trumps Ability.” Philosophy of Science 86(1): 178–91. Skinner, Quentin. 1978. The Foundations of Modern Political Thought, Vol. 2. Cambridge: Cambridge University Press. Sliwa, Paulina. 2012. “In Defense of Moral Testimony.” Philosophical Studies 158(2): 175–95. Srinivasan, Amia. 2018. “The Aptness of Anger.” Journal of Political Philosophy 26(2): 123–44. Srinivasan, Amia. 2020. “Radical Externalism.” Philosophical Review 129(3): 395–431. Stanley, Jason. 2016. How Propaganda Works. Princeton: Princeton University Press. Stanley, Jason and John Hawthorne. 2008. “Knowledge and Action.” Journal of Philosophy 105(10): 571–90. Stark, Cynthia  A. 2000. “Hypothetical Consent and Justification.” Journal of Philosophy 97(6): 313–34. Stilz, Anna. 2019. Territorial Sovereignty: A Philosophical Exploration. Oxford: Oxford University Press. Sunstein, Cass. 1995. “Incompletely Theorized Agreements.” Harvard Law Review 108(7): 1733–72. Táíwò, Olúfémi. 2022. Elite Capture. London: Pluto Press. Talisse, Robert. 2007. A Pragmatist Philosophy of Democracy: Communities of Inquiry. New York: Routledge. Talisse, Robert. 2009. Democracy and Moral Conflict. Cambridge: Cambridge University Press. Talisse, Robert. 2019. Overdoing Democracy. New York: Oxford University Press. Toole, Briana. 2022. “Demarginalizing Standpoint Epistemology.” Episteme 19(1): 47–65. Urbinati, Nadia. 2006. Representative Democracy. Chicago: Chicago University Press. Tuck, Richard. 1993. Philosophy and Government. Cambridge: Cambridge University Press. Vallier, Kevin. 2011. “Convergence and Consensus in Public Reason.” Public Affairs Quarterly 25(4): 261–80.

Bibliography  223 Vallier, Kevin and Ryan Muldoon. 2021. “In Public Reason, Diversity Trumps Coherence.” Journal of Political Philosophy 29(2): 211–30. Van Wietmarschen, Han. 2019. “Political Testimony.” Politics, Philosophy and Economics 18(1): 23–45. Viehoff, Daniel. 2014. “Democratic Equality and Political Authority.” Philosophy and Public Affairs 42(4): 337–75. Viehoff, Daniel. 2016. “Authority and Expertise.” Journal of Political Philosophy 24(4): 406–26. Viehoff, Daniel. 2019. “Power and Equality.” In David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford Studies in Political Philosophy, Vol. 5. Oxford: Oxford University Press, pp. 1–37. Waldron, Jeremy. 1993. “Special Ties and Natural Duties.” Philosophy and Public Affairs 22(1): 3–30. Waldron, Jeremy. 1999. Law and Disagreement. Oxford: Clarendon Press. Wall, Steven. 2007. “Democracy and Equality.” Philosophical Quarterly 57(228): 416–38. Way, Jonathan and Daniel Whiting. 2017. “Perspectivism and the Argument from Guidance.” Ethical Theory and Moral Practice 20(2): 361–74. Weale, Albert. 2018. The Will of the People. Cambridge: Polity Press. Weatherson, Brian. 2019. Normative Externalism. New York: Oxford University Press. Weiner, Matthew. 2005. “Must We Know What We Say?” Philosophical Review 114(2): 227–51. Wertheimer, Alan. 2000. “What Is Consent and Why Is It Important?” Buffalo Criminal Law Review 3(2): 557–83. Weymark, John A. 2015. “Cognitive Diversity, Binary Decisions, and Epistemic Democracy.” Episteme 12(4): 497–511. Whiting, Daniel. 2013. “Truth: The Aim and Norm of Belief.” Teorema 32(3): 121–36. Williams, Bernard. In the Beginning Was the Deed. Edited by G.  Hawthorn. Princeton: Princeton University Press, 2005. Williamson, Timothy. 2000. Knowledge and Its Limits. Oxford: Oxford University Press. Wolff, Robert Paul. 1970. In Defense of Anarchism. New York: Harper and Row. Young, Iris Marion. 2002. Inclusion and Democracy. New York: Oxford University Press. Zagzebski, Linda. 2012. Epistemic Authority. Oxford: Oxford University Press. Zagzebski, Linda. 2016. “Replies to Christoph Jäger and Elizabeth Fricker.” Episteme 13(2): 187–94.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. abortion  3, 47, 158, 161, 182n.10, 191 accessibility  16, 84–5, 130, 132–3, 138, 151–2, 179 accessibility objection  45, 54–63, 66–7, 91–3, 152, 211 accountability  36–8, 73–9, 114–15, 127, 188, 199–200, 213, see also epistemic accountability, mutual accountability Ahlstrom-Vij, Kristoffer  114n.9, 169 Almond, Gabriel A.  185n.12 anarchism/anarchists  122, 122n.1, 123n.2, 125–6 Anderson, Christopher  170–1 Anderson, Elizabeth  36, 174n.5 aperspectivalism 84–5 Applbaum, Arthur  11n.9, 12 arbitrariness  23, 104–6, 115 arbitrariness objection  38–44, 42n.21, 52, 54, 91–2, 101, 104–6, 126, 140, 144–5, 208–9 of democracy  5–6 Arneson, Richard  47–8 Association of Southeast Asian Nations (ASEAN) 12n.11 authoritarian political culture  184–5, 188–9 pressures 22 authoritarianism  17, 184–7 authoritativeness, see equal political authoritativeness authority, see cognitive political authority, epistemic authority, legitimate political authority, political authority, practical authority autonomy  3, 24, 64n.1, 78, 80–1, 107–8, 122 Aytac, Ugur  17n.16

Bajaj, Sameer  43n.22 Ballantyne, Nathan  72n.9, 186 Baynes, Kenneth  138n.16, 164n.19 Beetham, David  123n.3 belief-based (cognitivist) conceptions  18–22, 28n.7, 33n.16, 46, 49n.2, 61, 63–7, 70–4, 76, 81–3, 90–1, 101–2, 110–11, 121, 127, 140 exclusive  68–71, 83, 87–9, 132–3 inclusive  67–8, 82, 85, 88, 90 beliefs  18–20, 22, 27–8, 39–41, 45–8, 57–8, 76, 78, 85–6, 123, 130, 138, 146–7, 152, 159, 161–2, 167–8, 174, 178–9, 190–1, 195, 212 conflicting  89, 176, 194–5 correct  21, 64–7, 102–3, 160n.14 empirical 145–6 false  58–9, 146, 157, 157n.11 groundless 158 moral  149, 155, 161 normative  145, 195 religious  148–9, 156 unwarranted 147 warranted 145 see also justified belief norm, justified beliefs, political beliefs Berlin, Isaiah  139n.19 Bible 6 Bicchieri, Cristina  103–4 Biden, Joe  14–15, 144 bindingness  10, 12–13, 46, 48, 51–3, 78–9, 81, 101, 114–15, 127–8, 169–70 binding political decisions  3, 5, 6, 9, 10, 12, 15, 17–20, 31–4, 36–9, 43–5, 50–3, 60–3, 66, 68–9, 71, 73–6, 81, 97, 100–1, 103–5, 109, 114–15, 125–8, 132–4, 166, 180, 198–9, 200–2, 204, 211

226 Index body of evidence  7n.4, 83–6, 116–17, 181, 185–6 body of evidence condition  83, 85, 85n.20, 87, 90, 177–9, 181, 193–4 Bohman, James  130, 138n.16, 142n.25 Bovens, Luc  103n.5 Brennan, Jason  4–7, 18, 67, 69, 86 Brexit  4–5, 11, 40, 55–6, 59, 140–2, 159–60 Buchak, Lara  161n.16 Buchanan, James  10n.7, 16n.15, 28, 30n.12, 35, 125n.7 burdens of judgment  29, 111–13, 141n.23 Cartwright, Nancy  150–1 Cassam, Quassim  129, 164–5 censorship  155–8, 164–5 Chambers, Simone  124n.4, 142n.25 Chang, Ruth  91n.1 Cherry, Myisha  135n.14 children  8, 11, 40, 99–100, 205–6 China 186n.13 Chinese chef/cooking  74–5 Chinese philosophy  23n.1 Christensen, David  159, 160n.15 Christiano, Thomas  21n.19, 35–6, 106, 203–4 citizens’ will see political will climate change  3, 5, 52–3, 83, 100, 108, 126, 134, 159–62 Coady, David  179n.8 cognitive political authority  5–9, 18–19, 22, 63, 66–7, 71–117, 121, 128, 132–5, 140, 165–6, 170–4, 176–85, 190, 193, 196–9, 203–8, 210–12 Cohen, Joshua  20, 142n.25 Collins, Patricia  70 common good  27–8 competence condition  83, 87–8, 90, 116–17, 177–8, 181–2, 194–5, 213 Condorcet jury theorem (CJT)  67–8, 69n.5, 81, 83, 85–8, 140n.21, 157n.12, 204 Condorcet, Marquis de  21 Confucius 23n.1 consent  8, 13n.13, 16–17, 25–7, 25n.2, 30, 33–4, 43, 46–7, 53–4, 121–2, 125–8

consent view  13, 24–5, 35, 52–3, 53n.4, 121–8, 131 correctness  46–7, 64–5, 111–12 correctness theories  46–7 Covid-19  8, 11, 63–4, 74, 80n.13, 83–4, 87–8, 98–100, 103–4, 109, 141–2, 153, 161, 167–8, 172, 176–7, 181–2, 186n.13, 212 Croce, Michel  179n.8 Darwall, Stephen  12–13, 31–2, 34, 36–8, 73–9, 101, 114–15, 127–8, 170 decision-centred approach  13–14 decision-makers  7–11, 15, 18–20, 36–7, 39–40, 51, 58–60, 66–7, 71–3, 80, 98, 101, 122–3, 129, 132 decision-making  3, 5–8, 10–13, 15–17, 19–20, 22–3, 28–35, 37–9, 41, 43–4, 46, 51–62, 64–7, 69–70, 72, 75–6, 82–3, 85–7, 90–3, 95–6, 99–106, 109–17, 121, 124–6, 128–9, 133–42, see also democratic decision-making decisions, see arbitrary political decisions, binding decisions, binding political decisions, legitimate political decisions, right decisions, wrong decisions deference  8, 33, 132–3, 167–9, see also epistemic deference, moral deference, political deference deliberation, see political deliberation deliberative democracy  20, 28, 30–1, 67–8, 85, 123–4, 129–30, 129n.10, 138–40, 142n.25 deliberative democrats  130–1, 133, 139n.20, 164 demandingness problem  151–5 democracy  3–6, 9, 11, 11n.8, 17, 22, 27–8, 30, 30n.11, 35–6, 68, 71, 94–6, 130, 135n.14, 200, 203–11, 213–14, see also deliberative democracy, epistemic democracy constrained democracy  208–10 democratic decision-making  5, 9, 17, 21, 30, 35–6, 67, 85, 88, 93–4, 97–8, 123–4 democratic decisions  3–5, 9, 11n.8, 12, 17, 21, 27–8, 30, 36, 82, 203, 208–9 democratic legitimacy  6–7, 22, 36, 71, 85, 93–4, 139n.17, 204, 206, 209

Index  227 descriptive concept of legitimacy  123, 123n.3, 129 DiPaolo, Joshua  186 disagreements  3, 8–9, 25, 27, 53, 89, 95–6, 108, 125, 141n.23, 150–1, 159, 161, 178–9, 190–1, 194, 196, 198, 200–5, see also political disagreements discrimination  83, 86, 139–40, 150, 163, 187 disease  39–40, 145, 175–7 diversity-trumps-ability (DTA)  67–8, 81, 85, 87–9 divine command theory  23n.1 divine right of king theory  6 Dorst, Kevin  84n.18, 175n.6 Douglas, Heather E.  168–9, 185–6, 186n.14, 195 doxastic states, see beliefs states  19, 41, 128, 141–2, 153, 160, 190–1, 196n.6, 199 Driver, Julia  169 Dryzek, John  130 Dworkin, Ronald  127 economic costs 160 effects 8 growth 108 inequalities 4–5 regulation 83 relations 11 economics  14n.14, 84, 87–8 education  8, 30, 63–4, 83–4, 86–9, 163, 194, 205 egalitarian conceptions  34–6, 38, 42–3, 47–8 egalitarian norms see participation norms egalitarian society  47–8 elections/voting  3–5, 7, 12, 14–15, 25n.2, 27–8, 40, 55, 67, 77–8, 82, 85, 99–100, 103, 116, 136, 144, 156–7, 159, 166, 176–7, 183, 187–8, 202–3, 205 elite  4, 30, 129, 213 elitism 70 empirical beliefs  40, 133–6, 141n.23, 144–6, 150–1 competence 180 considerations  8, 167 deference 167 evidence 134

facts  42, 44, 46–7, 83, 92, 103, 140, 197–200, 206 premises  135–7, 141, 144, 158, 167–8, 172–3, 181–2, 192, 194–5, 197–8 employment  84, 86 Enoch, David  17n.17, 45n.1, 49, 51n.3, 54n.5, 169, 171–2 environment  96–7, 112, 114, 145, 150–1, 160 epidemiology  8, 87–8, 98–9, 167 epistemic accountability  7–8, 76–82, 92, 98, 101, 103–4, 115, 128, 140, 166, 171–3, 180, 187–8, 199, 207, 209–10 epistemic accountability conception  7–10, 13, 36, 91, 97–108, 111–12, 115–17, 121, 127–8, 131–4, 138, 140, 142–3, 166, 177, 201–13 epistemic advantage  18, 61, 63–7, 69–75, 81, 103, 211 epistemic arguments  71, 82, 181, 203–6, 208–9 epistemic authority  71–6, 78–83, 87–90, 94, 96, 98, 100, 104–6, 115–16, 127, 171–88, 205 epistemic circumstances  7–11, 82–3, 85n.20, 87–90, 92, 101–2, 104, 109–12, 116, 132, 134–5, 137–8, 154, 154n.8, 156, 165, 171–2, 175–81, 183–90, 193, 195–9, 204, 206–7, 209–13 epistemic constraints  8, 17, 19, 41–2, 93–8, 106, 149, 164–5, 208, 211 epistemic deference  166–9, 173, 183, 205n.15 epistemic democracy  6–7, 18, 20–1, 33n.16, 67–8, 82, 105, 203–6 epistemic injustice  162–4 epistemic norms, see political deliberation epistemic trespassing  72n.9, 186 epistemic underdetermination  7–9, 100–2, 104–5, 109–17, 121, 156, 177, 179, 181–4, 187–8, 193, 198–9, 211–12 epistemic underdetermination objection  82–92, 133–4, 154n.8 epistemic value  20, 85n.21, 162–3, 207 epistemologists  84–5, 169, 194 epistemology  16–18, 58–9, 70, 84–5, 159–60, 162n.17 epistocracy  6–7, 18, 67–71, 86, 89n.25, 90, 93–8, 105, 109n.7, 129, 204n.14 elitist epistocracy  6–7, 66–7, 67n.3, 69–70 equality  15–16, 30, 34–5, 138–9, 208–9

228 Index equally authoritative interpreters  32–3 equal political authoritativeness  23–4, 26–7, 31–9, 41–4, 68–9, 81, 94, 104, 107–8, 111, 115–16, 165, 169–72, 203–10, 204n.14 equal respect  34–5, 42–3, 139, 164 Estlund, David  7n.4, 10n.7, 46, 53n.4, 65n.2, 68–9, 71, 88n.24, 89, 93–6, 125n.6, 142n.25, 166, 170n.2, 202n.12 ethics  17–18, 87–8, 168–9 European Union (EU)  11, 12n.11, 55 evidence, see body of evidence, body of evidence condition evidence-relative ought  19, 32–3, 61, 66, 70, 79–81, 86, 94, 102–3, 133–4, see also fact-relative ought, practical ought expert-boss fallacy  71 expertise/experts  5–8, 17, 63–4, 67–70, 72, 74–5, 83, 86–90, 95–100, 103, 108, 114, 116–17, 140, 151–2, 155, 162, 167–9, 173–5, 174n.5, 177–9, 182–8, 194–5, 207, 212–13 fact-based (factualist) conceptions  17–21, 45–50, 49n.2, 52–3, 55, 56, 59–61, 62–7, 70, 91–3, 121, 126, 131–2, 211 fact-relative ought  19, 32–3, 61–2, 66, see also evidence-relative ought, practical ought Feld, Scott L.  28n.7, 33n.16 Ferretti, Maria Paola  17n.17 Flint water crisis  7, 116–17 Forst, Rainer  124n.4 Fossen, Thomas  17n.16 France 106 freedom  15–16, 39, 208–9, see also political freedom freedom-centred conceptions  34–6, 38 free speech  139, 147 Fricker, Miranda  163–4 Fuerstein, Michael  17n.17 Funkhouser, Eric  157n.11 García-Carpintero, Manuel  191n.2 Gaus, Gerald  12–13, 17n.17, 22, 29n.9, 32–6, 129n.10, 141, 201 The Order of Public Reason 141n.24

general will  27–8 genocide  42, 51–2, 182 Gerken, Mikkel  148n.2 Gibbons, Adam F.  89n.28 God  6, 23, 37 Goldman, Alvin  179n.8, 195, 196n.6 Goodin, Robert  6–7, 21, 67, 85n.22, 88, 129n.10, 130, 140n.21, 203–4 Greene, Amanda  28, 33–5, 123n.3, 139n.17 Green, Leslie  28 Grim, Patrick  88 Grofman, Bernard  28n.7, 33n.16 Grotius, Hugo  24–5 On the Law of War and Peace 24 Gutman, Amy  20, 114n.9, 130, 138n.16, 203–4 Habermas, Juergen  28, 123–4, 141 Hampton, Jean  24, 26 Hannon, Michael  157n.11 Harding, Sandra  84–5 Harman, Elizabeth  56 Hartley, Christie  29n.9 Hawthorne, John  153n.5 health  7–8, 63–4, 79–80, 83–4, 87–8, 96–7, 141–2, 161, 167, 191, 195 care  83, 98–9, 134, 144, 159–60 policy  192, 197–202 status  144, 192, 197–200 see also Covid-19, disease, epidemiology, vaccination Hedoin, Cyril  89n.28 Heinze, Eric  139n.17 Hershovitz, Scott  11n.8, 94 Hobbes, Thomas  4, 6, 14, 24, 27 Leviathan 26 Hohfeld, Wesley  12 Hong Kong protests  4 Hong, Lu  67–8 Hopkins, Robert  169 Horton, John  13n.12 Political Obligation 48 Howell, Robert J.  169 Huemer, Michael  10n.7 hybrid accounts  8, 44, 91–117, 133–4, 211 cognitivist elements  93–4, 133, 137–8 voluntarist elements  93, 121

Index  229 identification condition  83, 88–90, 95, 116–17, 177–9, 182–3, 194–5 immigration  11–12, 40, 99–100 James, William  58–9, 96–8 justice  3, 10n.6, 16, 35, 106–7, 127, 137, 143, 153, 163–5, 173 justificationist view  13, 13n.13, 25, 34, 34n.17, 35–6, 53, 53n.4, 121–8, 127n.8, 131–3, 140, 170 justified belief norm  143, 149–58, 164–5, 173, 178, 183, 188, 196 justified beliefs  41, 65–6, 148, 155–6, 158, 164–5, 178–9, 193 Kaltwasser, Cristóbal R.  4 Kantian constructivism 32n.13 tradition 34 Kant, Immanuel  26n.4, 28, 29n.10 Kavanagh, Matthew M.  186n.13 Kelly, Thomas  41n.20, 159 King, Martin Luther  156 Kitcher, Philip  168–9, 195 knowledge norm  143, 152–4 Kogelmann, Brian  89n.25 Kolodny, Niko  30n.12, 36, 202–4, 206 Lackey, Jennifer  154, 159, 162n.17, 168–9, 173–5, 193n.4 Lafont, Cristina  36, 67n.3, 71, 73n.10, 105–6, 166, 170n.2, 184, 187n.15, 193n.4, 203–4, 206, 209 Landemore, Hélène  6–7, 18, 20–1, 64–5, 65n.2, 67–8, 85, 109n.7, 130, 140, 142n.25, 202–4, 209 Larmore, Charles  34, 34n.18, 42–3, 139n.18 law/legality  11, 14–15, 47, 57–8, 99–100, 161, 191, see also natural law Leader Maynard. Jonathan  17n.16 legitimate political authority  12–14, 36–7, 47, 49n.2, 69–71, 73–5, 79, 94, see also political authority legitimate political decisions  5–6, 12–14, 23, 26, 35, 65–6, 73, 115, 123–4 liberal egalitarian conception  47–8 liberal principle of legitimacy  28–9, 34, 111–12, 123–4 liberalism  4, 28, 208–9

Libya 106–8 Lillehammer, Hallvard  168–9, 170n.2 Littlejohn, Clayton  18n.18 Locke, John  13, 26–7, 31–2, 122–3 Longino, Helen  168–9, 195 Luther, Martin  6 mandate of heaven  23n.1 Manin, Bernard  29–31 Mansbridge, Jane  129 Marmor, Andrei  124n.5 Marques, Teresa  191n.2 McGrath, Sarah  41n.20, 169 Mencius 23n.1 meta-ethics  16–17, 45 meta-normative approach  3–5, 9, 15–18, 20, 22, 31–2, 51, 54, 60–1, 63, 97–8, 106 Mills, Charles  187 Misak, Cheryl  17n.17, 130, 130n.11 Mittiga, Ross  184n.11 Monti, Ezequiel H.  75 moral deference  166–72, 187 Mudde, Cas  4 Muldoon, Ryan  29n.9, 201n.11 Muller, Jan-Werner  4 mutual accountability  36–9, 73, 77, 81, 115–16, 128, 134–6, 138–9, 170–1, 199–200, 202, 209–10 National Health Service (NHS)  40, 141–2 natural law  26–7, 122–3 Nguyen, C. Thi ,  85n.20, 89n.26, 105n.6, 174n.5 Nickel, Philip  169 no difference thesis  47–50, 49n.2, 62 no magic argument  51, 60–2 normative approach  3–4, 9, 16–17, 20 normativity  16, 39 conditional  87–8, 115–17 epistemic  39, 146 moral 38 of legitimacy  3, 16–17 of the political will  112, 115–17 political 17 practical  42n.21, 45, 49, 91n.1, 146 numbers-trump-ability (NTA)  67–8, 81, 83, 111, 140, 204 Nuyen, A. T.  23n.1

230 Index Obama, Barack  99–100 obligations  10n.7, 15–16, 46, 48 office holders  3, 9–11, 67, 83, 148–9, 187–9, 201–2, 213 orientation  57–8, 62 Page, Scott  67–8, 69n.5 Pamuk, Zeynep  168–9, 186, 195 Parfit, Derek  19, 45n.1 Parkinson, John  129 participation norms, see political deliberation Pateman, Carole  30 Pauli, Benjamin E.  7n.3 Peter, Fabienne  10n.7, 22n.20, 80, 95n.2, 116n.10, 142n.25, 152n.4, 157n.10, 159n.13, 194n.5 Pettigrew, Richard  196n.7 Pettit, Philipp  4, 30–1, 35, 203–4 Pitkin, Hanna  10 Plato The Republic 5–6 plurality of valid claims  113–15, 179, 196–7 political authority  26, 49, 68–9, 71–2, 76, 78, 96, 123–4, 133, see also legitimate political authority political beliefs  64–6, 129, 137–8, 143–4, 146, 156, 157n.11, 158, 161–2, 182n.10, 191, 194–6, see also beliefs political cognitivism, see belief-based (cognitivist) conceptions political competence  7n.4 political decisions, see binding political decisions, legitimate political decisions political deference  92, 132n.13, 166–90, 170n.2, 205n.15, 208, 211–12 political deliberation  17, 82, 111–12, 121–42, 144, 150–6, 158–9, 161–3, 167, 176–80, 182–6, 188, 191–2, 195, 209 cognitivist account  20, 130–1, 133–5, 137–8 epistemic norms  138, 140–65, 172–3, 188, 193, 195–6, 199, 207–8, 212 justificatory role  130, 133–5, 149 normative role  20, 121, 128–36, 140, 144–5, 166, 203, 206–8

participation norms  137–42, 147, 156, 163–5, 193, 206–8, 212 practical reasoning norms  136n.15, 137–8, 140–8, 164, 193, 199, 205–7, 212 voluntarist account  20, 130–1, 133, 135, 137–9 well-ordered  121, 135–42, 162–3, 193, 196, 198, 208 political disagreements  5, 8, 117, 134–5, 139–40, 141n.22, 156, 159–61, 164–213, 176, 179, 182–3, 190–203, 208, 210–13 fact-dependent  190–6, 196n.7, 198–9, 206 political factualism, see fact-based (factualist) conceptions political freedom  30–1, 35–6, 39–40, 139n.19 political judgments  6, 17–19, 23–30, 32–3, 43, 51, 53–8, 60–1, 64, 67, 69, 80–1, 92–3, 110–11, 128, 152, 167–9, 170, 171–2, 175–6, 179–83, 193–5, 198–9, 206, 212 political justification  16–17, 111–12, 123–4, 128–35, 131n.12, 190, 196–203, 209–10 political participation  29–31, 206–8, see also participation norms political power  3, 6, 27, 29, 35, 47–8, 89, 148–9 political realism  16, 17n16, 123n3 political voluntarism  23, 33n.15, 65, 198–200, see will-based (voluntarist) conceptions political will  3–44, 52–4, 63, 91–113, 115–17, 133, 138–9, 171, 180, 182, 198–9, 200n.10, 202–3, 208, 211–13 populism/populists  4, 17, 22, 101, 140, 213 practical authority  38, 68–9, 71–2, 74–5, 77–9, 81, 127, 173–4, see also legitimate practical authority practical normativity, see normativity practical ought  19, 33, 41, 80–1, 199–201, see also evidence-relative ought, fact-relative ought

Index  231

Rabinowicz, Wlodek  103n.5 rationality  6, 33–4, 205–6 Rawls, John  4, 10n.7, 12–13, 16–17, 22n.20, 25n.2, 26–9, 31–4, 38, 42, 53, 94, 111–13, 123–4, 125n.6, 127–8, 141, 148–9, 152n.4, 170, 201, 208–9 Raz, Joseph  6–7, 10, 10n.7, 12–13, 22, 47, 49n.2, 53n.4, 64n.1, 69–70, 73–6, 78–9, 94, 102–3, 123–4, 127, 132, 171, 173–4, 208–9 reasonableness  33–4, 141, 205–6 recklessness  58–60, 151–2, 154–5 Reiss, Julian  87n.23, 89n.28 responsiveness norm  143, 158–65, 173, 176–7, 182n.10, 198 Richardson, Henry S.  130 Rich, Patricia  153n.7 right decisions  3, 5–7, 17–19, 21, 45–7, 50–4, 58–61, 64–70, 74–5, 80–3, 85–90, 92, 103–5, 107, 112–13, 115–16, 140, 152, 154n.8, 157n.12, 164, 166–7, 172, 175–82, 184, 205, 212 rights  11, 15–16, 106 right to rule  10–12 Rini, Regina  182–3, 182n.9 Rossi, Enzo  17n.16, 123n.3 Rousseau, Jean-Jacques  13, 26–8, 33n.16 Rowland, Richard  196n.7 Rutte, Mark  153

Schneewind, J. B.  24 Schoenfield, Miriam  196n.7 Schumpeter, Joseph A.  30 Schwartzberg, Melissa  130 science  63–4, 72, 84, 103–4, 140, 168–9, 186n.14 scientific advice 153 advisors  98–9, 195 assessment 186n.14 consensus  63–4, 161–2 contributions 153–5 disciplines 194 discourse 148 expertise  87–8, 97, 151, 155 inquiry 148 knowledge 72 models 150–1 studies  84, 151 theories 168–9 scientists  70, 72, 95n.3, 153 self-originating sources of valid claims  31–4, 39–40, 42, 73, 77, 100–1, 103, 114–15 Sen, Amartya  14n.14, 116n.10 service conception  22, 49n.2, 69–70, 73–5, 81, 94, 123–4, 127, 171 Shafer-Landau, Russ  42n.21 Simmons, A. John  16, 28, 29n.10, 33–5, 122–3, 125–7 Simpson, Robert M.  139n.17, 196n.7 Singer, Daniel J.  85n.21 Sleat, Matt  17n.16, 123n.3 Sliwa, Paulina  169, 187 Sosa, Ernest  162n.17, 168–9 Spiekermann, Kai  6–7, 21, 67, 85n.22, 88, 130, 140n.21, 203–4 Srinivasan, Amia  135n.14, 150 standing objection  71–6, 78–82, 101, 106, 127 standpoint epistemology  70, 84–5 Stanley, Jason  129, 153n.5 Stark, Cynthia A.  125, 127n.8 Stilz, Anna  11n.10, 28, 33–4, 106–7, 122n.1 Sweden 99

Sanders, Lynn  135n.14 Scanlon. Timothy  18n.18 Schauer, Frederick  139n.17

Táíwò, Olúfémi  162n.18, 187 Talisse, Robert  17n.17, 95n.3, 130, 131n.12, 142n.25

practical reasoning  106, 146–8, 165, 177–9, 201, 206 practical reasoning norms, see political deliberation pragmatism  17n.17, 130n.11 procedure versus substance  20–2 procedure-independent standards  46–7 public reason conceptions  22, 25, 26n.4, 28–9, 34–6, 38, 42–3, 53–4, 123–4, 125n.6, 148–9, 201 Pufendorf, Samuel  24, 37, 77 Putnam, Robert  185n.12 Quong, Jonathan  29n.9, 201

232 Index testimony  76, 78–81, 114–15, 159, 161–2, 162n.17, 167–9, 172–9, 182n.10, 198 Thompson, Dennis  20, 130, 138n.16, 203–4 Toole, Briana  84–5 Trump, Donald  4–5, 40, 77–8, 99–100, 144, 148 truth norm  143, 149–55 Tuck, Richard  24 Tullock, Gordon  28 unanimity  25–8, 38 underdetermination, see epistemic underdetermination, epistemic underdetermination objection, value underdetermination Urbinati, Nadia  30n.11 vaccination/vaccines  39–40, 83–4 valid claims  32–3, 38–9, 86, 110–11, 113, 115, 156, see also plurality of valid claims, self-originating sources of valid claims Vallier, Kevin  29n.9, 201n.11 value underdetermination  113–16, 192–3 van Wietmarschen, Han  168–9, 170n.2 Verba, Sydney  185n.12 Viehoff, Daniel  30, 36, 109n.7, 202–4, 206

Waldron, Jeremy  5, 7n.4, 12n.11, 197n.8, 202n.12 Wall, Steven  202n.13 Watson, Lori  29n.9 Way, Jonathan  57n.6 Weale, Albert  4 Weatherson, Brian  56, 57n.6, 59n.7 Weberian account/conception  123, 123n.3 Weiner, Matthew  150n.3 Wertheimer, Alan  122 Weymark, John A.  68n.4 Whiting, Daniel  57n.6, 150n.3 will, see general will, political will will-based (voluntarist) conceptions  17–36, 33n.16, 38–9, 41–4, 46, 50, 52–4, 64, 71, 73, 77, 91–2, 100–1, 104, 106, 111, 113–15, 121–2, 126–8, 130–1, 133, 140, 190, 196–7, 200–1 will-formation  32–3, 39 Williams, Bernard  123n.3 Williamson, Timothy  153n.5 Wolff, Robert P.  122 World Health Organization (WHO)  63–4, 98–9 Worsnip, Alex  17n.16 wrong decisions  4–5, 58–9, 152 Young, Iris M.  139n.20 Zagzebski, Linda  173–4