One of LPE’s foundational commitments, as Sanjukta Paul reminds us, is that law constitutes markets – and that, as a result, we are free to constitute them differently. But this simply begs the question: how ought we constitute them? This is where political theory can be useful.
As Sam Bagg points out, many LPE scholars already understand that democracy must have something to do with it. We object to many of our laws because they are undemocratic, reflecting instead the power of entrenched elites. But what would count as democratic is a genus populated by a wide variety of species, from procedural, populist (left, right, and ideologically empty), republican (neo– and classical), epistemic, agonistic, discursive, representative, and participatory. Each implies different legal and institutional reforms and prioritizes different values. Moreover, if we are committed to some form of constitutionalism, we have to admit that democratic publics cannot shape the law any which way they please.
To find a way though this thicket, it is helpful to note that many of these conceptions of democracy tend to fall into two categories. Each posits a different relationship between democracy, law and justice. For some, law, if it is the outcome of democratic procedures, is inherently just or legitimate. Others value democracy instrumentally, useful as a reliable means to achieve otherwise desirable ends. Sometimes those ends include just laws. Sometimes they are more modest but no less important: anti-oligarchy, stability, peace.
Here, John Rawls’ notion of perfect and pure procedural justice is useful for clarification. Perfect procedural justice holds that institutions are just insofar as they can guarantee an outcome objectively identifiable as good. For example, the common-law jury trial is sometimes considered just because it is more likely than other methods to convict the guilty and free the innocent. If juries get it wrong, most of us would like to see the defendant released from prison. What we value most is not the jury trial procedure. Instead, what we really care about is that its outcome be correct.
Consequently, perfect procedural justice contemplates that democratic institutions are just insofar as they help bring about just goals, including just laws. It is with values existing “outside” the political system that we wield as a critical cudgel and as a blueprint for the design of better laws and government.
We observe this relation between law, democracy and justice in the natural law thinking of Dworkin and the utilitarianism of Bentham. The Federalist offers constitutional, representative democracy as a technique that can secure the objectively desirable end of negative liberty. We can also see it in Sabeel Rahman’s excellent Democracy Against Domination, where he offers the democratization of agency decision-making as a method to secure conditions of republican non-domination. The economic institutionalists of the early 20th century similarly experimented with “those mechanisms of control available through law, politics, the state, and new technologies of legislative and administrative regulation” that might best force just prices on public utilities. Recently, Anna Stansbury and Larry Summers similarly argued that corporate governance reforms could lead to fairer wages. Tom Malleson, channeling the 19th century guild socialists, suggests workplace democracy as necessary to achieve human autonomy. Though committed to diverse ideological allegiances, each designs and judges legal and political institutions according to their coherence with objective moral obligations. Indeed, this schematic is not picky about which ends our institutions are meant to instantiate. Instead, it is up to us to come up with reasons for why they ought to become priorities. After we undertake this work, we can then design political institutions that will bring our values to life.
This way of approaching law, justice and democracy is appealing on several levels. It can acknowledge and address the important question of power by helping us design our collective decision-making institutions in a way that accounts for those differences in race, wealth, gender, sexuality, etc. that lead to bad outcomes. It provides ready-made moral principles that can be easily incorporated into existing legal scholarship and structure our own public, political arguments. It also gives us an exit strategy if democratic lawmaking yields terrible results. Some human necessities may be too important to hazard – even for democracy.
It comes, however, with several risks. If democracy does ever lead to bad outcomes, one must decide what’s more important: democracy, or the outcome. We all know what neoliberalism decided. Moreover, as Luke Herrine points out, much moral and political philosophy takes place in the realm of the ideal. Philosophers therefore face the not-inconsequential ire of those who disagree with their ostensibly objective, universal notions of the good. Even republicanism faces feminist critique. Finally, valuing democracy as mere method is a particularly perilous proposition right now. Much of our contemporary politics involves struggles over technique: how best to raise wages, reduce greenhouse gasses, flatten the curve, eliminate police brutality. It’s not obvious that democracy will give us the right answers. When the appeal of epistemic authority is so tempting, we may want to give democracy stronger legs on which to stand.
The second, non-instrumentalist category of democracy might therefore prove more appealing. Here, Rawls’ notion of pure procedural justice is illustrative. Outcomes are just not because they align with any “outside” values. Rather, they are just because they are the result of actions taken in accordance with the terms of the procedure itself. For example, the winner of a footrace receives a trophy not for any reason other than she won the footrace by its own rules. Another example is the Kantian contract: the terms of the contract are just because they are the outcome of negotiation between autonomous individuals. This notion of justice thus appears when we talk about the unequal bargaining power between workers and employers, consumers and monopolies. Scholars will suggest remedies that tend to equalize the parties’ bargaining resources rather than paternalistically dictating terms to them. A pure proceduralist might, for example, favor unionization and UBI over wage-setting laws.
There is something inherently democratic about this notion of justice: it arises immanently from the participants themselves. Indeed, the later John Rawls grounds legal and political legitimacy not from comprehensive, objective ethical commitments, but from “freestanding” ideals created by democratic public reason. Some deliberative democrats tie justice and democracy together more explicitly: our democratic laws are just precisely because they are the outcome of procedures that ensure that we can all understand ourselves as co-equal authors of the laws that bind us. To illustrate, Rainer Forst (one of Habermas’ students), suggests that laws are just so long as they are justified using reasons that are both reflexive and reciprocal: that they are crafted according to terms that all can and do accept. He thus creates an identity between law, justice and democracy while accommodating the hard fact of diversity.
This orientation is particularly appealing when we reflect upon the legal construction of economic life. If law cannot be just unless it is the outcome of a process that allows us to understand ourselves as its co-equal authors, then everything from corporate law to monetary policy becomes amenable to democratic input. It can also address the question of power through the values embedded in democratic procedures. Material inequality and bias can skew their operation. And so we must tinker with the rules, perhaps through the “predistribution” or “redistribution” of wealth, so that our voices are equalized. This orientation also carries the benefit of eliminating, for the most part, the conflict between democracy and our end-values. We have a chance to debate and contest what is meant by “fair price,” “privacy,” and “equality” before we enshrine it in our laws and enforce it on everybody.
But we should be aware that some problems might be too important and exigent to leave to the mercy of burdensome procedure. Why wait on a public consensus about the “fairness” of a wage when children are hungry? More importantly, deliberative democracy may rely too much upon the possibility of consensus. Perhaps a crumbling relic of post war elite aspirations, it may offer precious little comfort in our politics of conflict and fragmentation.
As LPE undertakes the important work of dismantling neoliberalism’s appalling legal edifice, these guideposts will help scholars ground normative arguments about not only the substantive content of the law, but also the role that democracy should play in creating and sustaining it. The upshot is not merely a matter of philosophical gymnastics. For example, those committed to republican non-domination might staff labor boards entirely with worker representatives and technical experts – tribunes of the plebeians – who can act as a countervailing power against already-powerful employers. Reformers committed to universal social rights might be happy with an independent technocrat who could ensure that wages remain above poverty levels. Meanwhile, a deliberative democrat, wary of imposing the terms of labor peace from above, might be more amenable to regulatory boards that seek equal input from business and consumer constituencies. Regardless, it is heartening that the LPE community, many trained in legal reasoning, has embraced democracy as part of the solution. It undoubtedly must be.