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Thursday, July 13, 2006

More on Deliberation

A great discussion, thanks all.

Just to clarify a few points raised. Ethan is right that the view that the public is ignorant is as old as Plato. But we are neither elitist democrats nor (res horribilis!) non-democrats. On the contrary, we commend the average citizen who does not get involved in politics. She has better things to do with her life than either (1) acquiring the vivid, mostly false, social theories that succeed in the political arena; or (2) learning the complex, opaque social theory that she needs to deliberate in the manner recommended by deliberativists. We would even say that someone who gets involved in politics under the current conditions infected by discourse failure should be criticized, not praised. Again: someone engages in discourse failure when he utters a public political position that stems from a truth-insensitive epistemic (or cognitive) process. Thus: if I say that we should protect our "jobs" from foreign competition because I don't understand economics, I suffer from rational ignorance. If I say the same thing because I expect to get nominated to highly-paid government (or labor union, or whatever) job, then I'm guilty of posturing. The structure of incentives in the modern redistributive state generates discourse failure. People will predictably adopt positions at odds with reliable social science (economics, pol sci, etc)

Someone observed with dismay, in apparent support of our views, that deliberation failed in the blue states, given who they voted for, etc. But our theory is not about how people vote. It is about what people say in politics. It is a theory about discursive behavior. More specifically, we do not simply claim that people get their facts wrong (as Ethan says, this is old hat), but that they get their social theories wrong. The public systematically misunderstands how society works (in a future post I will list the specific patterns of discourse failure).

Finally, Ethan suggests that the public may deliberate about values, not facts or theories, and perhaps in that case rational ignorance and posturing are not as harmful. We address precisely this point in Chapter 6 of the book, where we criticize "the moral turn". This is the attempt by politicians and citizens (and, alas, sometimes scholars) to overmoralize political issues. We believe that most (not all) political controversies are causal, not normative. Examples: how to end poverty, how to reduce crime, etc. etc. Many political actors and political theorists treat these problem as one of values, not empirical theory.

But do you know many people who think we should have more poverty and more crime?

In that chapter we examine the various attempts to justify the moral turn, and we think that with respect to most (not all) political issues, this is illegitimate because most political issues have a consequentialist structure. We propose the Display Test to  check whether a political issue is genuinely normative or not. For example, suppose you defend the minimum wage in the name of the poor. If reliable economic research tells us that the minimum wage hurts the poor (by generating unemployment), can you legitimately claim that defending the MW is a moral issue, so that economics doesn't relly matter? In other words: can you proudly admit that your proposal, if adopted, would hurt the poor? If you cannot, then you've flunked the Display Test.

(In the book we show that public defenses of the minimum wage almost always conceal its downsides. Academic debates do not, but we're mostly analyzing public deliberation, not scientific seminars. Our point is precisely that the public does not take into account what is said in scientific seminars!)  This may seem obvious, but leading deliberativists such as  Guttman & Thompson, Christiano, Habermas, Nino, Rawls (in Political Liberalism) believe that the main problem in liberal society is that citizens have lasting moral disagreements and that deliberation is the way to settle them. We, on the contrary, believe that a main problem in modern society is that people err in politics, in the sense of acquiring or uttering views divorced from reliable social science. The public commits empirical mistakes. The moral turn, then, is yet another form of discourse failure.

Posted by fteson on July 13, 2006 at 09:58 AM in Fernando Teson | Permalink


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Larry Solum posted this article as his Download of the Week, a critical assessment by Michael Rosenfeld of Habermas' approach to rational discourse in Between Facts and Norms (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=917170). I just skimmed the first half, but whatever the conclusion, it is a readable digest of Habermas's political philosophy. Again, I don't offer it to prove the rightness of discourse over the scientific approach, but as an accessible way to understanding Habermas's thinking, which is spread out over a pretty vast volume of writing.

If there is anything binary here, I think it has to do with whether you believe there are articulable moral universals. The post-moderns and the radical pragmatists (Posner, Rorty, for example) think not. As the article points out, one turn is to instrumental reason over universal reason, and that is consistent with the "reliable social science" view. The other turn, and one with which I have tried to grapple, is reason morphed into fundamentalism. The readings I've listed (in the first group) are those in which the thinkers try to come to terms with moral universals without going so far as to say this is the one and only dogma. It's not an easy line to draw, or to walk. (I say that as I think about friends and loved ones in Haifa, and about innocents in the wrong place at the wrong time in Lebanon.)

Posted by: Jeff Lipshaw | Jul 16, 2006 10:29:48 AM

Thanks, Jeff. I'll check those books out.

And, fortunately, I already enjoy civil procedure issues and plan to do most of my work on a contingent fee basis.

Posted by: Jim Green | Jul 16, 2006 9:32:28 AM

My take on this is that (a) you can't win the argument on its own terms, and (b) nobody can win the argument. For every rationalist argument since Descartes, and for every empiricist argument since Hume, there is a corresponding response. Sort of like the conflicting canons in contract law Llewellyn laid out. Only Kantians have the answer, and it's so unsatisfying nobody wants to accept it, not even the Kantians (that's why there are neo-Kantians).

Moreover, Prof. Teson is right, I think, in saying that most political discourse, at least currently, is consequentialist-empirical, and it's going to be awfully tough to "win" the argument on rationalist-deontological grounds. Once you have said Rawls, and a deontologically based justice, is out of bounds because politics is consequential, you have assumed away the argument. In More's Utopia, the Utopians, in war, gave comfort and succor to enemy non-combatants. Is that because they had a duty (Christian? moral?) to do so, or because it meant that Utopians would be better off the next time they fought a war?

As I have argued, to get behind this kind of thesis, you have to be willing to engage in some metaphysical discussion about the nature of truth. And that is anathema, by and large, in law and most social science approaches. I am far more alarmed when I hear there is scientific consensus that global warming is occurring, than I am about a "scientific consensus" on the minimum wage. But that's not to say you can't take the moral turn and still agree with a lot of consequentialist policy. For example, I think the minimum wage probably does hurt the poor. It's a different kind of truth. Both of which are to be distinguished from the view that there is normative truth (versus normative universals). What about the philosophical problem of double effect? That is, the role of intentionality - an action has good effect: you intentionally shot a missile and got Zarqawi - but it has a bad effect that you didn't intend: you killed an innocent person. Is it possible that there are double effect issues with the minimum wage that are a response to the question: would you support the MW even while conceding that it hurt the poor? (I don't know; that's an example.)

Here are some additional suggestions for reading:

Christine Korsgaard, The Sources of Normativity
Susan Neiman, Evil in Modern Thought
Ian Shapiro, The Flight from Reality in the Human Sciences
Hannah Arendt, The Life of the Mind
Robert Audi, The Good in the Right

Then, after that, read:

Kaplow and Shavell, Fairness versus Welfare
Richard Posner, The Problematics of Legal and Moral Philosophy
Richard Posner, Law, Pragmatism and Democracy

After that, billable hours and civil procedure issues should be a relief.

Posted by: Jeff Lipshaw | Jul 15, 2006 5:17:20 PM

Ok, so nothing new to the lack of reliability in the social sciences. What I am interested in are the arguments that dispute the notion of the unavoidability of rational ignorance and the arguments in favor of deliberation even if rational ignorance is unavoidable. As much as I disagree with the conclusion that discourse failure is a forgone conclusion, I am not sure what the best arguments against rational ignorance are. Does anyone have any? If not, does anyone have any arguments that even if rational ignorance is unavoidable, deliberation is still better than nondeliberation?

Because, unlike most of you I don't have a website and am not a law professor, I want to say that I am a former and possibly future student of both Professr Markel and Professor Teson. In Teson's class he let us read the first chapter of his book on discourse failure and I posited many of the same objections to his thesis that have been raised here. I hesitate to try to explain his arguments against these objections because they would surely be inadequate. This is why I am interested in the arguments against both rational ignorance and, assuming rational ignorance prevails, in favor of deliberation. Perhaps Ethan, as the resident deliberativist, can enlighten me on the latter or at least suggest some reading, as Jeff did regarding the reliability of social science, that would help me understand and articulate my intuitive objections to the argument against deliberation based on rational ignorance.

Posted by: Jim Greem | Jul 15, 2006 4:15:53 PM

Jim, we are not original in these thoughts! Somebody somewhere on this thread listed Jurgen Habermas as one of the "deliberativists." His relatively recent essays on the interaction of natural and human sciences ("On the Logic of the Social Sciences," "On the Pragmatics of Social Interaction," and "Truth and Justification") argue (I think) that hermeneutics as the primary study of social interaction, on one hand, and natural science, on the other, co-existed peacefully for a long time, but that the introduction of scientific method into the study of human interaction changed that.

I won't get into why I have the following handy to cut and paste, but here's a sampling: "The nomological sciences, whose aim it is to formulate and verify hypotheses concerning the laws governing empirical regularities, have extended themselves far beyond the sphere of the theoretical natural sciences, into psychology and economics, sociology and political science.” . . . “the apparatus of general theories cannot be applied to society in the same way as to objectified natural processes.” “The cultural scientist does not communicate with [possible objects of experience] with the naked eye, so to speak. Rather, he inevitably places them in the value-relations in which his own cultural situation is set.” Thus, there are objective checks on the design of experiments in natural science investigation. The outcome of the experiment either “proves heuristically fruitful or it contributes nothing to the derivation of usable hypotheses.” In contrast, it is impossible to design experiments in the social sciences that are entirely free from the values of the theorist. . . . “[S]ocial sciences are thus obligated to declare the dependence of their basic theoretical assumptions on normative presuppositions of this sort.”

Posted by: Jeff Lipshaw | Jul 13, 2006 6:40:56 PM

I think Shapiro's book on The Estate Tax provides a good particular demonstration of Teson's thesis. But I find myself skeptical of arguments that deliberation, generally, will go wrong (just as I find myself skeptical of those who see it as a panacea or even as a generally salutary force).

As for "wrong social theories;" I'd highly recommend Adam Swift's thesis at Oxford on the inevitable inextricability of fact and value in accounts of how society works (entitled "For a sociologically informed political theory"). I think its insights might have filtered into this book:


Posted by: Frank | Jul 13, 2006 5:05:41 PM

Jeff, I too find it difficult to accept the premise that social science is reliable. Using the popular example, whether minimum wage benefits any particular group or society as a whole depends on factors that are not all readily susceptible to empirical study. Further, which concentric circle of relevance should be analyzed is also difficult to determine. Is it the immediate loss of low end jobs or the long term increase in opportunity that both may result from an increased minimum wage? Your suggestion that the state of discourse is itself may be the only civilizing feature I find both intriguing and persuasive. Perhaps discourse mitigates tendencies towards revolution in the manner access to courts mitigates tendencies towards blood feuds.

I am also troubled by social sciences potential for bias or manipulation in favor of the agenda of the researcher or their patron, as Rachel suggested. The simple act of choosing which factors and which circles to include can be controlled to determine the outcome. Although these methods may not qualify as truth sensitive, their existence is reduces the usefulness of the thesis.

Nonetheless, I think the thesis presumes the existence of truth sensitive epistemological and cognitive methods and argues that public discourse by its nature can never envelop these methods. The public discourse will never be able to achieve the level of sophistication and accuracy due to insurmountable rational ignorance. Every deliberator cannot be fully versed in the intricacies of every social problem. Thus, the conversation will be vastly diluted with misapprehensions and cannot lead to effective resolution of problems.

Posted by: Jim Green | Jul 13, 2006 4:15:00 PM

How, if not deliberation?

You could always bribe them.

Posted by: Lini of Musso | Jul 13, 2006 2:24:35 PM

The points Fernando raises also seem to demand a further question. What's the alternative? Consider the minimum wage example. Assume arguendo that the minimum wage is in fact bad (Rachel's excellent points to the contrary).

Then the current political system features dishonest (or stupid) politicians who wish to gull the public into supporting MW for their own benefit, ranged against noble economists who defend truth. In what medium are the economists supposed to defend their truth, except in the political public sphere?

Absent deliberation, how are the noble economists supposed to overcome the evil demagogic politicians? By what means can the economists take power, over the politicians whose incentive is to tell reassuring lies to the public? I suppose they could have a dictatorship, or a philosopher-king type society. But since Fernando is neither an "elitist democrat" nor a "non-democrat," he presumably wants the people to freely accept the economists favored policies. How, if not deliberation?

Posted by: Paul Gowder | Jul 13, 2006 1:39:37 PM

I am curious to see the expanded discussion in the book, but based upon your description, I am not convinced that your "display test" works. You seem to claim that political issues that appear normative in fact often are consequential -- giving as an example support for the minimum wage. The argument goes, I take it, that non-academics think they support MW laws from a moral perspective because it is necessary to decrease poverty. But they are wrong - MW laws actually hurt rather than help poor people because they lead to an increased unemployment rate. Once it becomes clear that the factual premise for the moral support was wrong -- it should also become clear that whether or not to support MW laws is not a moral issue but rather an empirical one. In sum, you claim what position on MW most helps poor people is a question to be debated among economists, not regular people.

It seems to me even with this example you are missing some important points (though maybe you address these in the book). Jeff already raised the obvious point that economists often disagree (and many would argue that the economists' own political vantage point may have some role to play in their conclusions). More interesting to me is that I can imagine a different normative underpinning as the basis for supporting MW laws (and this likely goes for other examples as well). Couldn't someone support MW laws on the ground that it is morally problematic for someone to work hard and be paid a pittance? Is it not a normative position that some might take that people who work full-time jobs should make enough money to live above the poverty line rather than that MW laws are the best way to raise everyone out of poverty? So if part of the debate around the MW laws (or other issues) are normative, doesn't this undercut your position?

Posted by: Rachel Godsil | Jul 13, 2006 1:31:04 PM

This last is interesting. I'm not sure why I didn't get it in the first thread.

My take on the conflation of truth and universals is Law as Rationalization: Getting Beyond Reason to Business Ethics, forthcoming in the U. Toledo Law Rev. (http://ssrn.com/abstract=886741), but it's long, so I will give the virtual equivalent of the elevator speech.

Advocates of social science as the basis for "theories of everything" tend to underplay or ignore the epistemologies or ontologies of their approach. "Reliable social science" is in the eye of the beholder. Do we mean rational actor economics (and its implicit view of ends and means) as reliable social science? Or behavioral economics? It wasn't me, but Kant, who took the view we order the world according to a priori principles. And while many of us (but with a nod to unrepentant Humeans) may be willing to accept causation, time, space, unity, etc. as a priori, the elevation of economic or political "laws" to that status seems premature. (As does, by the way, at least in my case, most religious dogma and ritual qua universal truth.)

I suppose it is bad form to quote oneself, but this is from a footnote in Duty and Consequence (36 Cumb. L. Rev. 321):

"The most thorough work in this regard is LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002). I have mixed feelings about it. An emphasis on welfare maximization seems to me a perfectly acceptable way to look at how we shape the social institution of law. But, as the authors recognize, you cannot prove that an emphasis on fairness over welfare is wrong. You can only prove that an emphasis on fairness reduces welfare as the authors define welfare. Hence, they note:

Our first argument, that advancing notions of fairness reduces individuals’ well-being, is in fact tautological. By definition, welfare economic analysis is concerned with individuals’ well-being, whereas fairness-based analysis (to the extent that it differs from welfare economic analysis) is concerned with adherence to certain stipulated principles that do not depend on individuals’ well-being.

Id., at 7. Nevertheless, it is hard, even for Kaplow and Shavell, to resist arguing that the focus on well-being is in fact right and consistent with fairness:

Other writing suggests that notions of fairness are valid because they are in accord with our instincts or intuitions. However, it is unclear as a logical matter how such an alignment provides an affirmative warrant for giving independent weight to notions of fairness. Moreover, the origins of our moral instincts and intuitions may reside substantially in their tendency to advance individuals’ well-being; if so, it would not make sense to employ them in support of notions of fairness in cases in which the notions are opposed to individuals’ well-being."

I suppose if I were more confident that reliable social science (say, Richard Posner on sex and love) would give me the right answer if I were just willing to learn and accept the methodology, I'd be less willing to believe that nobody has nailed it yet, and discourse of one kind or another is just about the only civilizing force we have.

Posted by: Jeff Lipshaw | Jul 13, 2006 12:02:56 PM

I am looking forward to sinking my teeth into your book when it comes out.

A follow up. Isn't it also necessary to your position that citizens cannot learn "social theories"? That they are not only rationally ignorant -- but always motivated to remain that way? That they are BOTH dense and stupid?

Many more practically-oriented deliberativists (I include myself in this group) are interested in designed institutions in which citizens can get relevant information in an efficient manner and can be conferred with enough power to incentivize them to emerge from rational ignorance. If we took a random group of citizens and told them that their decision would be enacted into policy and then gave them the relevant "social theory" and the "facts" (to the extent that there really are settled right answers), do you still think citizens couldn't be made to deliberate properly? Or, better, do you really think markets and politicians have fewer failures than whatever discourse failures would emerge?

Posted by: Ethan Leib | Jul 13, 2006 11:42:32 AM

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