On the Paternalism/Epistocracy Analogy Again, and Why Rawls Could Have Accepted Plural Voting
In a preceding post, I commented on an analogy between paternalism and epistocracy made by Brennan and Freiberg. If epistocracy is understood as a form of “political paternalism”, then paternalists with respect to consumption behavior should also be paternalists concerning political behavior, or so Brennan and Freiberg argue. The analogy comes back, under a different shape, in a recent paper by David Estlund, a philosopher who is generally credited for being the first to have coined the term “epistocracy”.
Estlund characterizes the analogy as follows. Paternalism is interference with someone’s choices, the underlying justification being the promotion or the protection of one’s interests. Resistance to paternalism is generally grounded on the idea that such interferences are wrong because they disregard a person’s autonomy and sovereignty. The paternalist generally responds that at least in some cases interferences are justified by a “competence gap”, i.e., the interferer is so much more well informed or capable than the interfered that it is overall right to interfere. Many accept this argument, for instance in the case of children. Now, suppose that we can adequately define democracy as a case of “symmetric legal subjection”.[1] Epistocracy could then be understood as a form of asymmetrical legal subjection where some agents (the “competent” or the “wise”) have legitimate political authority over the rest of the population. Most will resist epistocracy on the ground that such asymmetric subjection is unjustified because it goes contrary to a right for political equality, which can itself be grounded in an account of individual political sovereignty or autonomy. Then, the epistocrat may answer in a similar way as the paternalist: there may be a competence gap large enough to justify asymmetric legal subjection if it brings substantially better outcomes.
The analogy is obviously imperfect – paternalism is concerned with the outcomes affecting the person interfered with, while epistocracy is more concerned with the fact that the lack of competence of some may harm everyone. But it is useful to make clear a point that Estlund has defended several times: rejecting epistocracy on purely deontic grounds referring to political equality will not do. The “right against asymmetrical subjection”, if it exists, can be defeated when the competence gap is too large. As it happens, Estlund has also argued elsewhere that epistocracy is vulnerable to what he calls the “demographic objection” which indicates that the competence gap is probably illusory.[2]
My interest here lies elsewhere, however. In the last section of the paper, Estlund shows how this justificatory pattern of epistocracy applies within well-established political theories sympathetic to democracy, especially Rawls’s. This may be surprising because Rawls’s theory of justice is embedded in a more general account of political legitimacy that essentially takes liberal democracy as its blueprint. In particular, the lexical priority that Rawls confers to the principle of equal basic liberties reflects the democratic commitment to ideals of political equality and of procedural fairness. These ideals seem to call for democratic institutions and to stand in contradiction with the possibility of an asymmetric subjection.
Nonetheless, Estlund reasonably points out that things are not so straightforward. The basic idea is that within the principle of equal basic liberties, formal equality of political expression is merely instrumental in guaranteeing the “fair values of political liberties”. Rawls is clear in the case of political speech that formal inequality in freedom of political expression, for instance in the form of restrictions on spending during political campaigns, can be justified to preserve the fair values of political liberties.[3] The democratic principle of “decisional equality” (i.e., one person, one vote) is also prima facie a component of the formal equality of political expression. And indeed, Rawls is also open to the possibility that the preservation of the fair values of political liberties might justify abandoning this principle. This is illustrated by his treatment of Mill’s idea of plural voting, where Rawls writes (quoting from Estlund):
“Now the ship of state is in some ways analogous to a ship at sea; to the extent that this is so, the political liberties are indeed subordinate to the other freedoms that, so to say, define the intrinsic good of the passengers. Admitting these assumptions, plural voting may be perfectly just”.[4]
Obviously, Rawls statement is conditional and an endorsement of plural voting within his political liberalism is subordinated to the demonstration that there is a competence gap large enough. But it points out to the possibility that epistocracy might not be in contradiction with a liberal political morality.
[1] This is not uncontentious, at least in the case of representative democracy, as argued by Landa and Pevnick in a nice paper that basically shows that ideal representative democracy is a perfect form of epistocracy. They explicitly argue (against Estlund) that representative democracy involves a form of asymmetric ruling relationship. Let’s ignore this, however.
[2] A generalized version of the demographic objection is discussed and defended in a recent paper by Ingham and Wiens.
[3] See for instance Political Liberalism, p. 359.
[4] A Theory of Justice, p. 205.