The Roots of Democratic Legitimacy

Rules vs Majority

Let’s suppose that we have to make a collective decision about, say, how we should produce our electricity (coal versus nuclear versus wind). First, as members of society, we have to determine how we should make such a decision. In the most complex societies like ours, the choice-making procedure for this kind of issue is quite convoluted. It results from an interaction between the executive and the legislative, eventually informed by technocratic expertise. In (representative) democracy, we tend to assume that the legitimacy of whatever decision is made lies in the fact that it’s made by elected officials. However, what exactly makes the decisions of elected officials legitimate? There are two broad views about this issue. I explore them in what follows.

The first view is that the collective decision reflects —indirectly— the judgment of the majority of the population. This can be the simple majority (i.e., n/2 + 1 of n voters) or some qualified majority (i.e., 2/3 of voters). I say “indirectly” because, in a representative democracy, people don’t directly vote on specific issues (except in the case of a referendum). Instead, this is the parliament’s majority vote that is supposed to give the decision its legitimacy.[1] In any case, legitimacy is grounded in majority.

The second view emphasizes that the collective decision has been made along a procedure that is itself justified. Crucially, citizens have not “chosen” this procedure, at least not by the current citizens who are de facto committed by the collective choice. Rather, the procedure results from rules that may have been established decades, if not centuries, ago. The justification of this procedure is based on a mix of considerations related to tradition, substantive reasons about the goodness or the fairness of the procedure, and, eventually, that the procedure itself has been democratically chosen at some point in the past. Here, legitimacy is grounded in rules.

“Scene at the Signing of the Constitution of the United States”, Howard Chandler Christy (1940)

To understand the fundamental difference between these two views, consider what social choice theory has to say about the majority-based view of legitimacy. In 1951, the economist Kenneth Arrow published his PhD thesis under the title Social Choice and Individual Values.[2] In this work, Arrow establishes what is known as the “impossibility theorem.” Roughly, it says that if we insist that collective choices have the same rationality properties as those we usually impose on individual choices (i.e., in essence, that these choices are coherent), then they cannot satisfy a bunch of other desirable conditions unless they are made by a dictator. This applies, in particular, to any majoritarian voting rule. There will be some cases where the use of the majority rule leads to “cycles:” society prefers A to B and B to C, but C to A. This is inconsistent with rationality requirements because we assume that rational individuals can’t have such contradictory preferences.

There are many ways to react to this result. Many economists, including Arrow himself, have tried to circumvent the theorem by considering the relaxation of one or several of its conditions. The idea is twofold. First, not all conditions are necessarily relevant, at least from a democratic point of view. Second, once we accept that some conditions can be relaxed, we can establish that some voting rules are more “robust” than others, i.e., will generate a consistent collective choice in more configurations. The implicit message is that, despite Arrow’s impossibility result, majority rules are still relevant from a democratic point of view.[3]

This provides an indirect response to an alternative reaction to Arrow’s theorem, especially developed by the political scientist William Riker.[4] Riker argues that Arrow’s impossibility result undermines what he calls the “populist” conception of democracy. The populist conception holds that democratic choices are legitimate because they are supposed to reflect the “general will.” Except in very rare cases where unanimity prevails, this conception converges toward the view described above, according to which legitimacy is grounded in majority. Irrespective of whether you consider that a majority vote really expresses the general will or is more a pragmatic way of determining what people think, the idea is that majoritarian rules have a special status from the democratic point of view. However, Riker’s argument is that this view is incompatible with Arrow’s theorem because in many cases, majoritarian rules will fail to identify any general will, at least if we insist that this will must be rational.

Riker’s argument is convincing insofar as we assume that democratic choices must satisfy all the conditions that Arrow’s theorem imposes. But, as noted above, this assumption may not be warranted. In an article published shortly after Arrow’s book, the economist James Buchanan considers a different approach.[5] Buchanan questions the postulate that collective choices must be “rational” in the same sense as economists assume that individual choices are. Contrary to Arrow, Buchanan argues that we may actually want democratic choices to be inconsistent, at least when they are not unanimous:

“As a tentative choice, the majority-determined policy is held to be preferred to inaction, but it is not to be considered as irrevocable. The fact that such decisions be formally inconsistent provides one of the most important safeguards against abuse through this form of voting process. If consistency were a required property of decision, majority rule would not prove acceptable, even as a means of reaching provisional choices at the margin of the social decision surface.”

If democratic decisions were consistent in the formal sense of the term —if A is preferred to B, then B cannot ever be preferred to A— that would open the door to the tyranny of the majority. Quite the contrary, the appealing character of majoritarian rules is precisely that they are open to reversals and changes, making it possible to experiment with different decisions.

There are intricate issues in Buchanan’s argument that affect its strength.[6] If we grant the fact that consistency can lead to tyranny —for given individual preferences, the same views would always be singled out as majoritarian— we should also acknowledge that inconsistency can be harmful. Optimal decision-making often requires the ability to commit. Once a decision has been made regarding, say, energy policy, we want some guarantee that this decision will not be easily revoked by the next government. There is a tradeoff here. Democratic choices must not be completely irreversible because otherwise people would lose all ability to self-govern. Democratic choices must not be erratic either, because otherwise they will waste resources and be unreliable. In practice, the problem is often solved by withdrawing some decisions from democratic control, as it has been the case with monetary policy for several decades now.

What are the lessons regarding the majority versus rules debate regarding democratic legitimacy? Though their respective arguments differ, Riker and Buchanan agree that democratic legitimacy cannot be grounded in the majority. For Riker, this is because the majority will often be inconsistent —no general will exist. Contrary to Riker’s argument, Buchanan’s argument is not affected by the response that majority voting rules are the most “robust.” Indeed, for Buchanan, while democratic inconsistency is a virtue, legitimacy is grounded in the unanimous consent to self-govern through specific rules. Ideally, all collective decisions should be made by unanimous agreement because this is the only way to guarantee that nobody is coerced to act against their interests and values. Unanimity is costly to implement, especially in diverse societies. Majority voting rules are a second-best that is even more acceptable if there are constitutional guarantees that protect minorities from excessive abuses by the majority. It is only under this condition that everybody will accept to put one’s fate into the hands of majoritarian collective decisions, even though one may turn out to be in the minority that has to concede to the demands of the majority.[7]

This serves as a useful reminder that the majority should not be sacralized. The legitimacy of democracy is rooted in the fact that it permits relatively efficient decision-making while protecting the interests and values of everyone. When one of those two requirements cannot be satisfied by majoritarian choice, we should look for other ways to self-govern, e.g., private decision-making or expert-based (or even epistocratic) collective choices. To return to my opening example, when deciding between coal, nuclear, or wind power, simple majority rule might lead to unstable or harmful outcomes - today's majority might choose coal, next year's nuclear, creating costly policy whiplash. Instead, legitimate decisions emerge from established procedures: environmental impact assessments, expert consultations, and parliamentary deliberation, all operating within constitutional limits that protect minority interests.

Majoritarianism has pragmatic value, but it’s not constitutive of political legitimacy. The latter finds its roots in the rules in which collective decision-making is embedded, rules that we all have reasons to abide by.

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[1] This applies to parliamentary regimes where the parliament directly chooses the executive (the prime minister and his government). In presidential or semi-presidential regimes, as in the U.S. or France, it is the fact that both the parliament and the executive (the president) are (directly or indirectly for the latter) chosen by people that grounds legitimacy.

[2] Kenneth Joseph Arrow, Social Choice & Individual Values (Yale University Press, 1963).

[3] Partha Dasgupta and Eric Maskin, “On the Robustness of Majority Rule,” Journal of the European Economic Association 6, no. 5 (September 1, 2008): 949–73, https://doi.org/10.1162/JEEA.2008.6.5.949.

[4] William H. Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice (Prospect Heights, Ill: Waveland Pr Inc, 1987).

[5] James M. Buchanan, “Social Choice, Democracy, and Free Markets,” Journal of Political Economy 62, no. 2 (1954): 114–23.

[6] The biggest issue is that Buchanan’s discussion assumes that individual preferences remain stable. In this case, he is right that collective inconsistency is the only way to make sure that those whose preferences are in minority are not systematically submitted to the (tyrannical) authority of the majority. However, preferences do change and one could argue that a virtue of majoritarian democratic rules is precisely that they track preference changes. But then, we cannot brush aside the inconsistency problem.

[7] This is the main theme of Buchanan’s joint work with Gordon Tullock, see James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Indianapolis: Liberty Fund Inc, 1999).